Law Web: Whether Unfair Disposition Or Unjust Exclusion Of Legal Heirs In A Will Can Be Regarded As A Suspicious Circumstance?

In the given set-up, a basic question immediately crops up as to

what could be the reason for the testatrix being desirous of providing

unequal distribution of her assets by giving major share to the appellant in

preference to her other two children. The appellant has suggested that the

parents had special affection towards her. Even if this suggestion is taken

on its face value, it is difficult to assume that the alleged special affection

towards one child should necessarily correspond to repugnance towards

the other children by the same mother. Even if the parents had special liking

and affection towards the appellant, as could be argued with reference to

the gift made by the father in her favour of the ground floor of the property

in question, it would be too far stretched and unnatural to assume that by

the reason of such special affection towards appellant, the mother drifted far

away from the other children, including the widowed daughter who was

residing on the upper floor of the same house and who was taking her care.

In the ordinary and natural course, a person could be expected to be more

inclined towards the child taking his/her care; and it would be too unrealistic

to assume that special love and affection towards one, maybe blue-eyed,

child would also result in a person leaving the serving and needy child in

lurch. As noticed, an unfair disposition of property or an unjust exclusion of

the legal heirs, particularly the dependants, is regarded as a suspicious

circumstance. The appellant has failed to assign even a wee bit reason for

which the testatrix would have thought it proper to leave her widowed

daughter in the heap of uncertainty as emanating from the Will in question.

Equally, the suggestion about want of thickness of relations between the

testatrix and her son (respondent No.2) is not supported by the evidence on

record. The facts about the testatrix sending good wishes on birthday to her

son and joining family functions with him, even if not establishing a very

great bond between the mother and her son, they at least belie the

suggestion about any strain in their relations. Be that as it may, even if the

matter relating to the son of testatrix is not expanded further, it remains

inexplicable as to why the testatrix would not have been interested in

making adequate and concrete provision for the purpose of her widowed

daughter (respondent No.1).

29.3. The aforesaid factor of unexplained unequal distribution of the

property is confounded by two major factors related with making of the Will

in question: one, the active role played by the appellant in the process; and

second, the virtual exclusion of the other children of testatrix in the process.

As noticed, an active or leading part in making of the Will by the beneficiary

thereunder has always been regarded as a circumstance giving rise to

suspicion but, like any other circumstance, it could well be explained by the

propounder and/or beneficiary.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3688 OF 2017

KAVITA KANWAR. Vs. MRS. PAMELA MEHTA

Dinesh Maheshwari, J.

Dated: Dated: 19th May, 2020.

INTRODUCTION WITH BRIEF OUTLINE

1. This appeal by special leave is directed against the judgment and

order dated 27.06.2014 in FAO No. 36 of 2010, whereby the High Court of

Delhi at New Delhi has dismissed the appeal preferred by the present

appellant and has affirmed the judgment and order dated 23.11.2009 as

passed by the Additional District Judge, West District, Tis Hazari Courts,

Delhi in Probate Case No. 465 of 2006, resulting in rejection of the

appellant’s prayer for grant of probate in relation to the Will dated

20.05.2003, said to have been executed by the mother of the contesting

parties1.

1 Hereinafter also referred to as ‘the contested Will’ or ‘the Will in question’ or the ‘document in

question’.

2. The prayer of the appellant for grant of probate in relation to the Will

in question has been declined concurrently by the Trial Court and by the

High Court essentially after finding several unexplained suspicious

circumstances surrounding the Will in question. Being aggrieved, the

petitioner-appellant, who was appointed as the executor of the Will in

question and who was, admittedly, the major beneficiary thereunder, has

preferred this appeal while maintaining that execution of Will by the testatrix

with due compliance of all the requirements of law has been clearly

established on record and there has not been any such suspicious

circumstance which might operate against the genuineness of the Will in

question.

3. Therefore, essentially the point for determination in this appeal is as

to whether the Trial Court and the High Court were justified in declining to

grant probate in relation to the Will dated 20.05.2003 as prayed for.

THE PARTIES AND THE WITNESSES

4. For comprehension of the subject-matter and for effective

determination of the questions raised in this appeal, we may take note of

the principal parties and the witnesses involved in the matter with their

respective roles as infra:

4.1. The testatrix:

Smt. Amarjeet Mamik wife of Lt. Col. (Rtd.) D. S. Mamik.

Her husband Lt. Col. (Rtd.) D. S. Mamik had expired on 20.10.2002.

The testatrix herself expired on 21.05.2006, leaving behind two

daughters and one son, who are the contesting parties herein.

4.2. The appellant: Smt. Kavita Kanwar

She is the younger daughter of the testatrix. She is shown as the

executor of the Will in question and she is the major beneficiary

thereunder, though with certain conditions. She had filed the petition

seeking probate that has been declined by the Trial Court and the

High Court.

4.3. Respondent No. 1: Smt. Pamela Mehta2

She is the elder and widowed daughter of the testatrix. The

conditions stated in the contested Will are purportedly aimed at

making a provision for her residence. Initially, she did not file the

written statement of contest but at the later stage of proceedings

and during the evidence of the appellant, she attempted to file her

written statement. However, the prayer so made by her was

declined by the Trial Court. Nevertheless, she has continuously

contested the matter, as shall be noticed hereafter.

2 The respondent No. 1 of the present appeal was on record as respondent No. 2 in the Trial Court

and High Court. Therefore, reference to her in the impugned judgments and other proceedings

shall appear with description as ‘respondent No. 2’. However, for continuity of expressions in this

judgment, she is referred to as ‘the respondent No. 1’ with contextual clarification wherever

required.

4.4. Respondent No. 2: Col. (Rtd.) Prithiviraj Mamik3

He is the son of the testatrix. By way of bequeath in the Will in

question, he has been given ‘credit balance’ lying in the bank

accounts of the testatrix but with clarification that he shall not inherit

any portion of the immovable assets of testatrix. He had filed the

written statement and has consistently contested the claim for

probate of the Will in question.

4.5. The attesting witnesses:

PW-2: Shri. Urvinder Singh Kohli, who is said to be a friend of the

appellant and his daughter got married to the son of a cousin of the

appellant; and PW-3: Major General Manjit Ahluwalia, who is son of

the sister of testatrix.

THE IMMOVABLE PROPERTY INVOLVED: ANNALS AND

DESCRIPTION

5. We may also notice at the outset that the immovable property, a part

whereof forms the subject of bequeath and which is the major bone of

contention in this case, has its own chronicle of different transfers as per the

desire of its original owner, father of the contesting parties. For

comprehension of the relevant factual aspects as also salient features of

this case, it is equally necessary to take note of the description of

immovable property in question as also the past dealings in relation thereto.

3 Similar to FN 2 ibid., the respondent No. 2 of the present appeal was on record as respondent

No. 3 in the Trial Court and High Court. Therefore, in the impugned judgments and other

proceedings he is described as ‘respondent No. 3’. However, for continuity of expressions in this

judgment, he is referred to as ‘the respondent No. 2’ with contextual clarification wherever

required.

5.1. The property in question is identified as bearing number D-179,

Defence Colony, New Delhi admeasuring 325 square yards and comprising

of a building having ground floor, first floor, terrace and annexe block of

garage and servant quarter. The whole property originally belonged to Lt.

Col. (Rtd.) D. S. Mamik, father of the contesting parties who, in his lifetime,

gifted the ground floor of this property to the appellant by way of a

registered Gift Deed dated 25.01.2001; and thereafter, he bequeathed the

remaining portion/s, that is, the first floor, terrace and the annexe block of

garage and servant quarter in favour of his wife Smt. Amarjeet Mamik

through a registered Will dated 14.02.2001. Lt. Col. (Rtd.) D. S. Mamik

expired on 20.10.2002. Hence, after his demise, Smt. Amarjeet Mamik,

mother of the contesting parties, became owner of the first floor and other

portions of the said property except the ground floor.

5.2. It is also noteworthy that at the time of execution of the contested

Will dated 20.05.2003, the testatrix Smt. Amarjeet Mamik was residing at

the ground floor of this property (which had otherwise been gifted to the

appellant by her father). The first floor of this property (which had otherwise

been bequeathed to the testatrix by her husband) has remained in

occupation of respondent No. 1, the widowed daughter of the testatrix.

THE WILL IN QUESTION

6. The contested Will dated 20.05.2003 has been placed on record as

Ex. PW1/H. A vast variety of features related with this Will form the subject

of dispute in this case. The Trial Court and the High Court have also

analysed and taken into account several of the suspicious circumstances

surrounding this Will and the long length of arguments of the learned

counsel for the contesting parties in this appeal have also revolved around

this Will. Having regard to the questions involved, it would be apposite to

take note of the features and attributes of the contested Will to appreciate

the stand of the contesting parties as also the findings in the impugned

judgments.

6.1. The contested Will is drawn up in two pages. It is a partly holograph

document in the manner that its opening and concluding passages/clauses

are handwritten whereas the other paragraphs/clauses are of electronic

print. This Will is said to have been executed on 20.05.2003 by Smt.

Amarjeet Mamik while residing on the ground floor of the property in

question at D-179, Defence Colony, New Delhi in the presence of the

attesting witnesses and the appellant.

7. The Will in question reads as under: -

“WILL

I Amarjit Mamik aged 77 years w/o Lt. Col. (Retd) D.S.

MAMIK r/o Ground floor D. 179, Defence Colony New Dlhi

– 110024 c/o hereby make This my will and testament on

This 20 day of May 2003 at New Delhi.

1. WHEREAS I was married to Lt. Col. (Rtd.) D.S. Mamik

from which union the following children were born:

1. Mrs. Pamela Mehta - Daughter, aged 60 years

2. Col. (Rtd.) Prithivijit Mamik - Son, aged 57 years

3. Mrs. Kavita Kanwar - Daughter, aged 50 years

2. AND WHEREAS my said husband was the owner of the

said building bearing No. D-179, Defence Colony, New

Delhi – 110024, constructed on a plot of land admeasuring

325 sq. yds. and comprising of a ground floor, first floor,

terrace thereon and the annexe block of garage and

servant quarters thereon.

3. AND WHEREAS during his life time my said husband had

executed a duly registered Gift Deed dated 25.1.2001 in

respect of the ground floor of the said building in favour of

my aforementioned youngest daughter Mrs. Kavita Kanwar

who has after the execution of the said Gift Deed granted a

licence to use the same floor for my residential purposes

out of natural love and affection.

4. AND WHEREAS my said husband has vide Will dated

14.2.2001, validly executed and duly registered,

bequeathed to me the first floor, the terrace thereon and all

other portions of the said building, hereinafter referred to as

the property, save and except the said ground floor of the

same building.

I am in my full senses and disposing mind and I fully

understand what is right and wrong. I am on my own accord

voluntary, without any force, pressure, coercion or influence of

any kind am making this Will in order to direct as to the

manner of the inheritance of my aforementioned assets upon

my demise. I hereby and hereunder revoke any wills or

codicils that I may have made in the past.

1. I hereby give, devise and bequeath to my youngest

daughter the said Mrs. Kavita Kanwar my entire share in

the aforementioned immovable property, namely the first

floor and the terrace including all other portions, save and

except the ground floor with specific directions that my said

daughter Mrs. Kavita Kanwar will carry out either of the 2

options as deemed proper by her, namely

(a) construct on the terrace of the said building such

residential facility of such covered area as is permissible

under the Municipal Building Bye-laws at the time of my

demise and hand over possession of the same

construction to my elder daughter, namely Mrs. Pamela

Mehta, who shall thereafter acquire sole exclusive title to

the said portion with the terrace rights thereon continuing to

vest in favour of the said Mrs. Kavita Kanwar,

(b) demolish the said building and carry out such new

construction as is permissible under the Municipal Building

Bye-laws and be the sole exclusive owner of the entire

building thus constructed, save and except such

constructed residential portion on the highest floor of such

building, which portion shall vest solely and exclusively in

favour of my said elder daughter Mrs. Pamela Mehta,

while the terrace rights thereon shall continue to vest in

favour of my said daughter Mrs. Kavita Kanwar.

2. I also direct that in the event of my acquiring any further

movable or immovable assets hereinafter or any other assets

that I may have forgotten to mention in the present Will the

same shall devolve upon my daughter Mrs. Kavita Kanwar.

3. I hereby give, devise and bequeath to my son, Col.

Prithivijit Mamik, the credit balance lying in my Bank Accounts.

I however, clarify that my said son shall not inherit any portion

of my aforementioned immovable assets.

4. I hereby appoint my said daughter Mrs. Kavita Kanwar as

the Executor of my Will.

In witness whereof, I Amarjit Mamik have set and

subscribed my hand to this my last will as also to each of

the 2 pages that comprise it having understood the

contents thereof and endorsing thereby and giving my

approval to the bequest made therein.

I fully endorse the manner in which my assets shall

devolve as stated hereinabove in my will made out in 2

pages. Each of which page has been signed by me.

Amarjeet Mamik

Testator

Signed by the Testator in the presence of

the witnesses and the witnesses have (Sd/-)

signed in the presence of the Testator

Witness No. 1: (Sd/-)

Maj Gen Manjit Ahluwalia

D-34 Defence Colony

20 May 2003

Witness No. 2: (Sd/-)

(Sd/-) 20/5/03 Urvinder S. Kohli

S/o S. Navinder S. Kohli

227 Jor Bagh N. Delhi”

(Note: The bold italicised portions are in the handwriting of the

testatrix whereas unbold italicised portions are in the handwriting of

the respective witnesses. All other contents are of electronic print)

SUMMARY OF PLEADINGS, ISSUES AND EVIDENCE AS ALSO THE

RELEVANT PART OF PROCEEDINGS IN THE TRIAL COURT

8. Having taken note of the particulars of the parties and the property

involved as also the contents of the Will in question, we may now

summarise the pleadings of the parties, the issues framed by the Trial

Court, the material aspects of evidence led by the parties and the relevant

part of the proceedings in the Trial Court, which have bearing on the

questions involved herein.

8.1. Briefly put, the petition leading to this appeal was filed by the

appellant on 06.11.2006 in the Court of District Judge at Delhi under

Section 276 of the Indian Succession Act, 19254 for grant of probate of the

Will in question, said to have been executed by her mother Smt. Amarjeet

Mamik while arraying the State (N.C.T., Delhi) as the party respondent.

Thereafter, by filing amended memo of parties, the present respondent Nos.

1 and 2 were arrayed as respondent Nos. 2 and 3 respectively. The

appellant stated the facts relating to the children of the testatrix as also the

said gift of the ground floor made by the father in her favour and then,

asserted in the petition that by the Will in question, the testatrix had

bequeathed the first floor and other portions except the ground floor of the

4 Hereinafter also referred to as ‘the Succession Act’.

said property at No. D-179, Defence Colony, New Delhi in her favour with

directions to carry out one of the two options, i.e., either to construct on the

terrace of the first floor of the said property or to demolish the said building

and to re-construct and give the highest floor of the said building to Mrs.

Pamela Mehta (other daughter of testatrix) while retaining the terrace rights

thereon; and had bequeathed the balance in her savings bank account

maintained with Central Bank of India in favour of her son Col. (Rtd.)

Prithivijit Mamik. While stating that the Will in question was duly executed in

the presence of the aforesaid two witnesses and that the testatrix expired

on 21.05.2006, the appellant asserted that she was the executor and

beneficiary of the Will in question and was entitled to seek its probate.

8.2. For their relevance, we may usefully take note of the material

contents of the said petition as also those of Schedule A and Schedule B

attached to the petition, giving out respectively the particulars of the natural

heirs of the deceased Smt. Amarjeet Mamik and a list of assets of the

deceased as under:-

“ *** *** ***

4. That the “WILL” dated 20.05.2003 was duly executed

by Smt. Amarjeet Mamik in the presence of two

witnesses namely Major Gen. Manjit Ahluwalia r/o D-

34, Defence Colony, New Delhi and Sh. Urvinder

S.Kohli s/o S.Narinder S.Kohli r/o 227 Jor Bagh, New

Delhi-110003.

5. That the deceased was the owner of first floor, the

terrace thereon and all other portions of premises no.

D-179, Defence Colony, New Delhi-110024, save and

except the ground floor of the said building, as

mentioned in the will and the said property, is likely to

come to the hands of the petitioner and her sister

namely Mrs. Pamela Mehta as per the “WILL”.

6. That the husband of the deceased was the owner of

property bearing no. D-179, Defence Colony, New

Delhi-110024 constructed on a plot of land measuring

325 square yards and comprising of a ground floor, first

floor, terrace thereon and an annexe block of garage

and servant quarters thereon.

7. That during his lifetime the husband of the deceased

had executed a duly registered gift deed dated

25.01.2001 in respect of the ground floor of the said

building in favour of his youngest daughter i.e. Smt.

Kavita Kanwar.

8. That the husband of the deceased vide ‘Registered

Will’ dated 14.02.2001 bequeathed to the deceased the

first floor, the terrace thereon and all other portions of

the said building to the deceased, save and except the

ground floor.

9. That Smt. Amarjeet Mamik died on 21.05.2006 at Delhi

within the jurisdiction of this Court.

10. That the deceased Smt. Amarjeet Mamik was a Hindu

by religion and she left behind, besides the petitioner

the following relatives/legal heirs :

(i) Mrs. Pamela Mehta Daughter

(ii)Col. (Rtd.) Prithvijit Mamik Son

The complete addresses of the above heirs are given

in the annexures marked as schedule ‘A’ attached with

this petition. Except the above legal representatives

there is no legal heir of the first class as mentioned in

the Hindu Succession Act.

11. That the petitioner is one of the beneficiaries of the

“WILL” dated 20.05.2003 and the petitioner is also the

executor of the said “WILL”. The immoveable property

which is likely to come to the hands of the petitioner is

having the worth of about Rs. 18 Lakhs.

12. That the assets which are likely to come in the hands

of the petitioner are the first floor and other portions of

the property no. D-179, Defence Colony, New Delhi-

110024 save and except the ground floor of the

building and to carry out the two options of constructing

either on the terrace of the first floor of the said building

or to demolish the said building and to re-construct

and give highest floor of the said building to Mrs.

Pamela Mehta and retaining the terrace rights there on.

13. That the balance in the Savings Bank account No.

1001020597 maintained with the Central Bank of India,

Defence Colony, New Delhi as mentioned in the

Schedule-B attached to the petition will go to Col.

(Rtd.) Prithivijit Mamik and the petitioner does not claim

the same.

*** *** ***

SCHEDULE A

Name and Addresses of the L.Rs of the deceased Smt.

Amarjeet Mamik

S. No. Name Relationship Address

1. Mrs. Pamela Mehta Daughter D-179,Defence

Colony, New Delhi-

110024.

2. Co. (Rtd.) Prithvijit Mamik Son Madhuban Gian

Vatika, Khalini,

Shimla(H.P.)

3. Mrs. Kavita Kanwar Daughter S-45, Panchshila

Park, New Delhi-3

*** *** ***

SCHEDULE B

IMMOVEABLE PROPERTY:

First floor, the terrace thereon and all other portions of premises

no. D-179, Defence Colony, New Delhi-110024, save and

except the ground floor of the said building.

MOVEABLE ASSETS:

1. Balance in Savings Account No. 1001020597

maintained with Central Bank of India,

Defence Colony, New Delhi. Rs. 577389.00”

*** *** ***”

9. The said petition seeking probate was eventually transferred to the

Court of Additional District Judge, Delhi for consideration. After requisite

publication and due notice, the respondents put in appearance but, on

18.04.2007, it was given out on behalf of the present respondent No. 1 that

she did not wish to file objections to the petition. However, the objections

with documents were indeed filed on behalf of the present respondent No.

2, who refuted the claim of the appellant and contended, inter alia, that the

Will in question was forged and fabricated, where the appellant was the

major beneficiary as also the executor; that there was no reason for

exclusion of the respondents and grandchildren from the legacy; and that

the property in question being an ancestral property, belongs to all the legal

heirs of late Shri D.S. Mamik. The replying respondent maintained that

there existed no dispute between testatrix and himself and there was no

reason for the mother to have excluded him from the Will. He also

contended that the property bequeathed in favour of the appellant was

worth crores of rupees and hence, it was impossible to comprehend that his

mother had left him merely a sum of Rs. 5,77,389/- when the relations

between him and his mother were cordial.

10. The Trial Court framed the following issues for determination of the

questions involved in the matter: -

“1. Whether the Will dated 20-5-2003 of Smt. Amarjeet

Mamik is proper and valid? OPP

2. Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik

is forged and fabricated? OPR-3

3. Whether the petitioner is entitled to the grant of

Probate/Letter of Administration in respect of Will dated 20-5-

2003 of Smt. Amarjeet Mamik? OPP

4. Relief”

11. In evidence, the appellant examined herself as PW-1; and the two

attesting witnesses of the contested Will, Shri Urvinder Singh Kohli and

Major General Manjit Ahluwalia as PW-2 and PW-3 respectively. Shri Nikhil

Kanwar, son of the appellant, was also examined as PW-4. In documentary

evidence, the Will in question was marked as Ex. PW1/H.

11.1. It had been the consistent case of the appellant that she had no

prior knowledge that the Will was being executed on the given day and that

it was the testatrix who invited the appellant to her residence. The appellant

asserted in her evidence that only after reaching her mother’s house on the

given day, it came to her knowledge that her mother was executing a Will.

She further stated that she was not aware of the contents of the Will. It had

also been the assertion of the appellant that her parents had special love

and affection for her and that had been the reason for them having gifted

and bequeathed the said property to her only. The appellant also stated in

the cross-examination: (i) that she did not know the educational qualification

of the testatrix but she (testatrix) knew how to read and write in English; (ii)

that she and the testatrix were not residing together for the last 20-22 years;

(iii) that the testatrix neither discussed the contents of the Will with her nor

mentioned as to who had drawn and typed the Will in question; (iv) that she

came to know about the existence of the Will on 20-21 May, 2003; (v) that

her mother had not called respondent Nos. 1 and 2 on the day of execution

of the Will; (vi) that respondent No. 1 was living on the floor above the

testatrix and was looking after the testatrix, who was suffering from cancer;

(vii) that the testatrix had called the attesting witnesses; (viii) that she did

not know when the testatrix discussed the Will with the respondents; (ix)

that the testatrix had discussed the contents of the Will with the attesting

witnesses (x) that she remembered the testatrix writing something but was

not sure whether it was on the Will or something else5; and (xi) that the

relations of the testatrix and the respondent No. 2 were strained.

11.2. PW-2 and PW-3, the attesting witnesses, both specifically deposed

that on their arrival at the house of Smt. Amarjeet Mamik, they found that

the appellant was already present there; that the testatrix wrote something

on the Will in their presence before signing it; and that they were unaware

of the contents of the Will as the same was not discussed with them. PW-2

also maintained that on 18.05.2003, the appellant had called him to the

house of her mother on 20.05.2003. On the other hand, PW-3 deposed that

it was the testatrix who invited him to her house that day; that he was

having good relations with the appellant and the respondents; that the

testatrix was having good relations with respondent No. 2 and also that

when Smt. Amarjeet Mamik wrote something on the Will, she copied it from

a draft which she had with her.

12. In opposition, the contesting respondents deposed as R2W-1 and

R3W-1 respectively. Shri Ram Gopal Meena from the Post Office, Defence

Colony was examined as R3W-2; Shri S.P. Sharma from State Bank of

India as R3W-3; Shri R.S. Negi from Defence Colony Association Club as

R3W-4; and Shri S.P. Khamra from Central Bank of India was examined as

R3W-5. Several documents produced by the respondents like family

photographs, birthday card sent by testatrix to respondent No. 2 etc. shall

also be referred to at the appropriate juncture, to the extent of relevancy.

5 Though in the affidavit-in-evidence, the appellant had mentioned that her mother had written the

introduction portion as also the concluding portion on the Will.

12.1. The respondent No. 1 in her evidence, inter alia, deposed that their

mother was not even 10th standard pass and that she was having cordial

relations with herself as also with the respondent No. 2.

12.2. The respondent No. 2 in his evidence, inter alia, deposed that he

was having good relations with his mother; and, as he was serving in Indian

Army, the mother would talk to him over the phone and would even send

letters and birthday card wishing him all the happiness.

13. Before proceeding further, one of the peculiar aspects of the matter,

which carry its own bearing on the relevant questions and emanates from

the record of proceedings of the Trial Court, may be noticed as infra.

13.1. It appears that at the initial stage of proceedings in the Trial Court,

the relations of the appellant and the respondent No. 1 (who was

respondent No. 2 in the Trial Court) had not gone into any discord. As

noticed, the present respondent No. 1 stated before the Trial Court on

18.04.2007 that she did not wish to file any objections to the petition.

However, it appears that during the course of evidence of the appellant,

differences and disputes spurted between the appellant and the respondent

No. 1 and the appellant filed a separate civil suit for injunction against the

respondent No. 1. In sequel to this new position of conflict of interests, the

respondent No. 1 attempted to put forward direct contest of the petition

seeking probate and, on 24.03.2008, moved an application under Section

151 of the Code of Civil Procedure (‘CPC’) before the Trial Court, seeking

opportunity of further cross-examination of the appellant. In this application,

the respondent No. 1, inter alia, raised a plea about the alleged third page

of the Will in question. The application so moved was rejected by the Trial

Court on 25.03.2008 and, as regards the point concerning the alleged third

page of the Will, the Court observed as under:

“25.03.2008

*** *** ***

Point No. 2: From the point No. 2, it appears that

respondent No. 2 now is raising a totally different and new

stand regarding the 3rd page of the Will. She has not

produced the original or copy of the alleged 3rd page along

with this application. The story of this 3rd page has come on

record first time through this application which cannot be

believed when nothing in this regard was asked in the cross

examination of PW-1. Non filing of any objections against

this Will despite taking opportunities prima facie leads to the

inference that respondent No. 2 accepted the Will as correct.

She was also given some portion in the property under the

Will and thus kept quite without disputing Will and now is

challenging the genuineness of the Will all of a sudden simply

on the ground that petitioner has filed a civil suit for injunction

claiming exclusive ownership of the property.

In the probate proceedings, the question of the ownership

or title is not decided and court is only concerned with the

fact whether the Will is genuine or not. Counsel for the

petitioner during arguments stated that the rights given to the

respondent No. 2 under the Will shall be protected. Keeping

in view these above circumstances, I am of the view that no

permission can be granted to the respondent No. 2 to cross

examine further at point No. 2 mentioned in para No. 4 of the

application.”

13.2. On 24.03.2008, another part of the proceedings had been that the

Court closed the opportunity for cross-examination of some of the

witnesses of the appellant by the respondent No. 2. After the aforesaid

proceedings, an application under Order IX Rule 7 CPC was filed on behalf

of the respondent No. 2. On the other hand, an application seeking

permission to file written statement and for condonation of delay was filed

on behalf of the respondent No. 1. In that application, the present

respondent No. 1 again referred to the alleged third page of the Will; and

such an assertion was again emphatically denied by the appellant while

maintaining that the Will in question was only in two pages and there was

no third page of the Will as alleged.

13.2.1. The aforesaid two applications were dealt with by the Trial Court in

its order dated 03.07.2008. While the application filed by the respondent

No. 2 was granted on costs but the application moved by the respondent

No. 1 was rejected with costs. In regard to the aspects concerning the

alleged third page of the Will, the Trial Court, observed as under:

“In this application u/s 5 of Limitation Act, respondent no. 2

has relied upon alleged 3rd page of the Will whereas

petitioner stated that the Will consisted of only 2 pages and it

has no 3rd page. Respondent No. 2 has placed on record

photocopy of that alleged 3rd page but even if this photocopy

is seen and compared with original Will, then prima facie it

can be said that it was not a part of the original Will the

alleged 3rd page appears to be some another document and

prima facia it is not certainly 3rd page of the Will. Otherwise

alleged 3rd page of the Will can not be relied upon because in

the cross examination of PW-1 respondent no. 2 has not

referred about it any where or confronted her with it though

admittedly it was in her possession since beginning.”

13.3. The respondents yet persisted with their assertion about existence

of the third page of Will in question and now, the respondent No. 2 moved

an application under Order XI Rule 12 and 14 CPC seeking production of

the same. This application was also resisted by the appellant while denying

existence of any such third page and even with the allegation that this third

page had been fabricated by the respondents in connivance with each

other. The Trial Court dealt with and rejected the application so moved by

the respondent No. 2 (who was respondent No. 3 in the Trial Court) by way

of its order dated 23.08.2008, inter alia, with the following observations:-

“Counsel for Respondent no. 3 during arguments read the

cross examination of the petitioner as well as the contents of

the alleged third page of the Will to show that, that the

movable properties was distributed by the deceased during

her life time in accordance with the contents of the third page

of the Will so it can be said that the Will in fact consisted of

three pages and not two pages as alleged by the petitioner,

however, I am not convinced with this submission.

In the cross examination of the petitioner the alleged third

page of the Will was never put to confront her in order to

substantiate the plea that the Will consists of three pages.

Even in the cross examination of PW-2 attesting witness of

the Will no suggestion was given that the Will was of three

pages and not of two pages. The Will Ex. PW-1/H is of two

pages and even the handwritten endorsement at the end of it

point out that it consisted of only two pages. The alleged third

page of the Will, photocopy of which was placed on record by

the respondent no. 2 does not bear any date or signatures of

any attesting witnesses. The alleged third page has already

been found not a part of the Will as per order dated 3-7-2008.

The respondent no. 3 in his objection has described the

entire Will as forged and fabricated but now cannot be

allowed to take a contradictory stand that the third page is

genuine and other two pages are forged on the ground that

admittedly the movable property was distributed in

accordance with the alleged third page among the legal heirs.

In this case, the claim is made by the petitioner in respect

of one immovable property and one bank account and no

claim is made in respect of any movable property. Even if it is

presumed that deceased during her life time distributed her

personal belongings, cash and jewellery in accordance with

the third page then also that third page has now become

useless because the distribution of the movable assets took

place during life time of the deceased whereas the Will has to

take effect after the death of the testatrix. Accordingly, in this

case only subject matter remains is immovable property and

the bank account.

Petitioner has denied the existence of this alleged third

page and also denied having possession of the same. She

has also denied supplying of the copies of this alleged third

page to the respondents at the time of service of the petition.

The reply is supported by an affidavit of the petitioner, so in

such situation also no direction can be given to the petitioner

to produce the original of alleged third page of the Will which

is being relied upon by the respondent no. 3 now. Petitioner

infact is saying that this third page has been fabricated by the

respondents in connivance with each other.

Accordingly, I find no merits in the application of

respondent no. 3 especially when in the cross examination of

PW-1 and PW-2 no such third page was put for confrontation

and relying upon this alleged third page now is contradictory

from the contents of the objections filed to the petition.

Application is thus, dismissed with cost of Rs. 1000/- to be

paid to the petitioner.”

14. Hereinabove, we have expansively recounted the part of the

proceedings in the Trial Court concerning the alleged third page of the Will.

As could be readily noticed, while the contesting respondents, one way or

the other, kept on insisting that there had been a third page of the Will but,

per contra, existence of any such third page of the Will in question was

categorically denied by the appellant; rather the appellant alleged that the

said third page had been fabricated by the respondents in connivance with

each other. The Trial Court also accepted the submission of the appellant

that no such third page existed, particularly after noticing that the appellant

was never confronted with any such third page of the Will. The Trial Court

even observed that distribution of movable assets of testatrix was complete

during her lifetime and the only subject-matter remaining was the

immovable property and the bank account. The relevance of these aspects

shall appear in the later part of this judgment, when we shall be dealing with

the effect of a different stand taken by appellant in the High Court.

FINDINGS OF THE TRIAL COURT

15. Having glanced through the pleadings and evidence of the parties,

having taken note of the contents and frame of the Will in question, and

having also taken note of the relevant parts of proceedings before the Trial

Court, we may look at the findings of the Trial Court in its judgment dated

23.11.2009, particularly the reasons that weighed with it while declining the

prayer for probate of the Will in question.

15.1. As regards the objection of respondent No. 2 that the property in

question was an ancestral property, the Trial Court referred to the decision

of this Court in Chiranjilal Shrilal Goanka v. Jasjit Singh: (1993) 2 SCC

507 and held that the said objection would not be entertained because the

‘question of right, title, share and ownership is not to be decided in the

probate proceedings’. The Trial Court also found that the testatrix was of

sound mind at the time of execution of the Will, particularly when she was

handling her own affairs including bank account and property; was leading

a very active life till her death; and was also attending club and driving her

own car.

15.2. However, thereafter, the Trial Court took into account various

circumstances which appeared to be suspicious. In the first place, the Trial

Court referred to the decisions in H. Venkatachala Iyengar v. B.N.

Thimmajamma: AIR 1959 SC 443, Indu Bala Bose v. Manindra Chandra

Bose: (1982) 1 SCC 20 and Surendra Pal v. Dr. Saraswati Arora: (1974)

2 SCC 600 and observed that if propounder of the Will takes an active part

in the execution of the Will and receives substantial benefit under it, then

such a circumstance is generally treated as suspicious one. As regards the

facts of the case at hand, the Trial Court found that the appellant played an

active role in execution of the Will in question and at the same time, she

was the major beneficiary thereunder where she was not only given the first

floor but also the terrace rights and all other portions of the property in

question.

15.3. Secondly, the Trial Court was of the view that the exclusion of the

only son from the immovable property was also a suspicious circumstance.

The Court took into consideration the birthday card Ex. RW3/1 sent by the

testatrix to respondent No. 2 and was of the view that the words of praise in

the said card belied the suggestion that the relationship between them was

strained. The Trial Court also took into consideration the family photographs

making out that the testatrix was present at the second marriage of

respondent No. 2 and observed that the said photographs were not

challenged or questioned by the appellant. The Trial Court also observed

that the testatrix would not have given him the amount in the bank account

if their relations were strained.

15.4. Thirdly, the Trial Court also found that the other daughter of the

testatrix (the respondent No. 1 herein) virtually did not get any substantial

share. The Trial Court was of the view that the exclusion of respondent No.

1 from the Will, when there was no proof of strained relationship of testatrix

with her, made the Will unnatural and unfair; and this was another strong

suspicious circumstance to reject the Will.

15.5. Fourthly, the Trial Court did not feel satisfied about the manner of

writing and execution of the Will and observed that the testatrix had not

completed her education and was not a computer literate; that a few

portions of the Will were handwritten and there were traces of pencil lines

beneath the handwritten portions, making out that the testatrix was asked to

write as per dictation on the particular portion; and that certain portions of

the Will contained technical and legal words not known to a layperson. The

Trial Court observed that the relevant facts as to how the Will was typed

and how the testatrix was made to write the particular clause in the Will in

her own handwriting were not clarified and the manner of execution of Will

was another suspicious circumstance.

15.6. Fifthly, the Trial Court was of the view that the attesting witnesses

were unreliable and the possibility of PW-3 being bribed was not ruled out

as the appellant had given an amount of Rs. 25,000/- to his daughter. On

the other hand, PW-2 admitted in his cross-examination that he hardly knew

the testatrix.

15.7. Sixthly, the Trial Court also took into consideration the contradictions

in the statements of the witnesses, which raised doubts as to the

genuineness to the story of the appellant. The Trial Court pointed out that

as per the appellant, she had no knowledge of the execution of the Will

prior to 20.05.2003 but as per the testimony of PW-2, it was the appellant

who called him on 18.05.2003 for the purpose of attestation of the Will.

15.8. Seventhly, the Trial Court also observed that there were vague

recitals in the Will such as, ‘other portions of the building’, when the said

property consisted only of the ground floor and first floor.

16. While elaborately dealing with all the suspicious circumstances

concerning the Will and unreliability of the evidence led by the appellant,

the Trial Court found that the appellant had not been able to remove the

suspicions and hence, dismissed the petition.

CONCURRENCE OF THE HIGH COURT

17. Being aggrieved by the said judgment of the Trial Court, the

appellant approached the High Court in FAO No. 36 of 2010 that has been

considered and dismissed by the impugned judgment dated 27.06.2014.

Having regard to the questions involved, we may notice the reasons that

prevailed with the High Court in upholding the decision of the Trial Court in

requisite details.

17.1. In the impugned judgment dated 27.06.2014, the High Court in the

first place took note of the relevant material on record; the suspicious

circumstances surrounding the Will in question as indicated by the Trial

Court; and the contentions of respective parties. Thereafter, the High Court

referred to the basic ingredients for due execution of a Will as per Section

63 of the Succession Act and Section 68 of the Indian Evidence Act, 18726

and the principles exposited by this Court in the cases of H. Venkatachala

6 Hereinafter also referred to as ‘the Evidence Act’.

Iyengar v. B.N. Thimmajamma (supra); Rani Purnima Debi v. Kumar

Khagendra Narayan Deb: (1962) 3 SCR 195, Smt. Jaswant Kaur v. Smt.

Amrit Kaur and Ors.: (1977) 1 SCC 369; Babu Singh and Ors. v. Ram

Sahai @ Ram Singh: AIR 2008 SC 2485; Gurdial Kaur and Ors. v.

Kartar Kaur and Ors.: 1998 SCR (2) 486; P.P.K. Gopalan Nambiar v.

P.P.K. Balakrishnan Nambiar and Ors.: AIR 1995 SC 1852, Benga

Behera and Anr. v. Braja Kisore Nanda and Ors.: (2007) 9 SCC 728 and

B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors.: (2006) 13 SCC

449 as also in a Division Bench decision of Madras High Court in J.

Mathew and Ors. v. Leela Joseph : (2007) 5 MLJ 740 and observed that

as per settled law, mere proof of signatures on the Will was not sufficient to

prove its due execution; and it was the duty of the party seeking probate to

satisfy the conscience of the Court as regards due execution of the Will by

the testator and for that matter, the Court can probe deeper into the matter

to satisfy its conscience that the testator/testatrix had duly executed the Will

after understanding its contents. The High Court, thus formulated the point

for consideration as under:-

“28. The question for consideration is whether the evidence

led by the appellant i.e., propounder satisfies the conscience

of the court that the Will in question was duly executed.”

17.2. Thereafter, the High Court took up the crucial finding of the Trial

Court that the evidence on record did not establish that while signing the

Will Ex. PW1/H, the testatrix understood the contents thereof.

17.2.1. In regard to this fundamental aspect as to whether the testatrix

understood the contents of the document Ex. PW1/H, the High Court

meticulously examined the material on record and observed that the

appellant, in her evidence, did not mention that the testatrix was aware of

the contents of the Will. The High Court further referred to the testimony of

the appellant to the effect that she was not made aware by the testatrix as

to who had drawn and typed the Will in question; that she was made aware

about the Will only on the day of its execution; that she was not aware if

testatrix had discussed the Will with respondent Nos. 1 and 2; that she was

not directed by the testatrix to call respondent Nos. 1 and 2 on the day of

execution of the Will; and that though she remembered the testatrix writing

something, but she was unsure whether it was on the document of Will. A

major discrepancy was observed by the High Court in her deposition with

regard to the attesting witnesses where the appellant stated that the

testatrix had discussed the contents of the Will with PW-2 and PW-3 while

those witnesses denied the same in their evidence. Thus, after having

thoroughly examined the testimony of the appellant, the High Court

concluded that nothing was brought on record to show that the testatrix was

aware of the contents of the Will. The High Court said,-

“30. The evidence on record in this regard is examined. The

appellant has nowhere stated in her evidence by way of

affidavit Ex.P1 that testatrix was aware of the contents of the

Will Ex.PW1/H. In her cross-examination, she has stated that

her mother i.e. testatrix did not discuss the contents of the

Will Ex.PW1/H with her before drawing it nor her mother told

her as to who had drawn and typed the said Will. The

appellant has further stated in cross-examination that she

does not know when Will Ex.PW1/H was got typed. She has

further stated that she had come to know about the said Will

Ex.PW1/H only on 20-21 May, 2003. The appellant has also

deposed that she does not know whether her mother i.e.,

testatrix had discussed the Will Ex.PW 1/H with respondent

no.2 or respondent no.3. Her mother did not ask her to call

respondent nos.2 and 3 on that day. In cross-examination,

she has further stated that her mother had discussed the

contents of the Will with the witnesses i.e. PW2 and PW3

whereas PW2 and PW3 in their evidence have denied the

same. The appellant has further deposed that she does not

know if any professional or any deed writer was engaged for

drafting/typing of the Will Ex.PW 1/H. The appellant has also

deposed that on that day her mother had written something

but she does not know whether it was on the Will or

something else. From her evidence, it cannot be said that

testatrix was aware about the contents of the Will Ex.PW1/H.”

17.2.2. The High Court also examined the evidence of attesting witnesses

PW-2 Shri Urvinder S. Kohli and PW-3 Major General Manjit Ahluwalia, who

deposed that the testatrix did not discuss the contents of the Will with them

nor did they question her about the same; and that after they had arrived at

the residence of testatrix, she went ahead to write something more on the

Will before signing it. The High Court observed that from their testimonies

too, nothing was proved if the testatrix understood the contents of the

document in question and said,-

“ 33. Even from the evidence of attesting witnesses i.e. PW2

and PW3 it can’t be said that testatrix had put her signatures

on the Will Ex. PW1/H after understanding its contents or

that while signing she was aware of its contents.”

17.2.3. Proceeding further, the High Court also took note of the statement of

the respondent No. 1 that the testatrix was not even 10th pass; and also

referred to the statement of the appellant that she was not aware of the

educational qualification of her mother but her mother could read and write

in the English language. The High Court referred to the fact that the testatrix

was not computer literate and had no legal knowledge; and the language

used in the Will showed that the same was drafted by a lawyer. The High

Court observed that no evidence was led in as to who drafted and typed the

Will Ex. PW1/H and considered the same to be a suspicious circumstance

with reference to the decision of this Court in Smt. Jaswant Kaur (supra).

The High Court also took into account the feature that the document in

question was partly typed and partly handwritten with no plausible

explanation for the same and found that the document was not prepared in

one sitting. Thus, after thorough analysis, the High Court concluded that

from the evidence led in by the appellant, it cannot be said that the testatrix

had understood the typed portion or that the same was read over to her

before she put her signatures on the Will. Accordingly, the High Court

affirmed the findings of the Trial Court in regard to such a suspicious

circumstance while observing and finding as under: –

“35. …The Will Ex. PW1/H is partly typed and partly hand

written i.e. opening and closing para of the Will Ex. PW1/H.

The evidence shows that the Will Ex. PW1/H was also not

prepared in one sitting. The first and last para of Will Ex.

PW1/H is in the handwriting of testatrix. The rest of the Will

Ex. PW1/H is typed one. No explanation has been given in

evidence as to why the Will is partly handwritten and partly

typed. During arguments, learned counsel for appellant has

submitted that first and last para are handwritten so as to

give more weightage to the Will in question. However, the

reasoning given is not understandable. Further, no evidence

is led by the appellant to show from where the Will in

question was got typed. The first para of Will in question

gives the name and other details of testatrix and last para is

the closing para of the Will in question. The typed portion

gives the details of alleged bequeath in the Will Ex. PW1/H

whereby major portion has been given to the appellant and

one floor as per choice of the appellant is alleged to have

been bequeathed in favour of respondent No. 2. Reading the

evidence led by the appellant it can’t be said that the testatrix

had understood the typed portion or same was read over to

her before she had put her signatures on the Will Ex. PW1/H.

The learned ADJ has rightly held the above as the suspicious

circumstance…..”

17.3. The High Court thereafter examined the bequeathing contents of the

Will in question and observed that nothing was available in the petition or

evidence of the appellant as to why the major portion of immovable property

was given to her though she was not staying with the testatrix for about 20-

22 years and it was not her case that she was looking after the testatrix who

was a cancer patient. On the other side of the picture, the High Court

noticed that the widowed daughter of the testatrix (respondent No. 1 herein)

was, at the relevant time, living on the first floor of the house where testatrix

was residing; and, as per the evidence on record, respondent No. 1 was

looking after her mother and was taking her to Army Hospital. Having thus

taken note of the overall scenario and setup, the High Court found it rather

inexplicable that the respondent No. 1 was left at the mercy of the

appellant; that in the Will in question, no time limit was provided as to when

the appellant would construct the floors and about the nature and quality of

the construction; and that respondent No. 1 shall have to be dispossessed

for the purpose of the expected construction.

17.4. The High Court also dealt with another major factor pertaining to this

case that the appellant, the major beneficiary, indeed played an active role

in execution of the Will in question; and noticed material contradictions in

the testimonies of appellant and her witness PW-2. The High Court found

that the appellant was unable to satisfy the conscience of the Court in

regard to such suspicious circumstance in the following passages:-

“40. Reading the Will in question, it is the appellant who is

the major beneficiary of the Will. The evidence on record

shows that she has also played an active role in the

preparation of the alleged Will. She was present when the

Will in question was allegedly executed. The attesting

witness Urvinder S Kohli, PW-2 is very well known to the

appellant being her friend for the past 30 years. He has

deposed that he had known deceased through appellant and

later the appellant’s cousin’s son got married to his daughter

in the year 1994 and since 1994 he had visited testatrix only

twice or thrice on social occasions. Reading his evidence it

can’t be said that he was close to the testatrix. In these

circumstances, testatrix could not have called him of her own

for attesting the Will Ex.PW1/H. Though in the evidence,

appellant has deposed that her mother i.e., testatrix had

called the said witnesses whereas the witness PW2 has

deposed that on 18.5.2003, he was called by the appellant

who told him to come to her mother’s house on 20.5.2003 as

her mother wanted to executed the Will.

41. The evidence on record shows that appellant has taken a

prominent part in execution of Will Ex.PW1/H which confers

on her a substantial benefit worth crores of rupees. This itself

is a big suspicious circumstance as has been held by

Supreme Court in Niranjan Umesh Chandra Joshi vs. Mridula

Jyoti Rao: 2007 (1) AD SC 477. It has also been held by

Supreme Court in Surinder Pal vs. Saraswati Arora: (1974) 2

SCC 600 that where propounder takes prominent part in the

execution of Will which confers on him a substantial benefit

that is itself one of the suspicious circumstance which he

must remove by clear evidence. In the present case no

evidence is led by appellant to satisfy the conscience of the

court to clear the aforesaid suspicious circumstance existing

at the time of making of Will Ex.PW1/H. The propounder was

required to remove the doubts by clear and satisfactory

evidence.”

17.5. Turning on to the respondent No. 2 (son of the testatrix), the High

Court found that absolutely no reason was provided in the Will for excluding

him from the said immovable property and for limiting his benefit under the

Will to the balance amount in the savings bank account of the testatrix. The

High Court observed that though the appellant had deposed that there were

strained relations between the testatrix and respondent No. 2 but, on the

contrary, the witness PW-3 Major General Manjit Ahluwalia, son of sister of

the testatrix, as also respondent No. 1 had deposed that their relations, in

fact, were satisfactory. The High Court again referred to the documentary

evidence as regards regular maintaining of good relations between the

testatrix and her son, like those of birthday card and the family

photographs, and observed that if at all there were strained relations, the

testatrix would not have even bequeathed any amount to her son. Again,

after a thorough analysis of the evidence on record, the High Court found

that there was no sufficient evidence of strained relations between the

testatrix and her son to such an extent that she would have excluded him

from her immovable property. Hence, the exclusion of respondent No. 2

from bequeath was also taken to be that of a grave suspicious

circumstance casting doubt on the genuineness of the Will in question. The

High Court, inter alia, observed,-

“46. There is no evidence coming forth to explain the

suspicious circumstance of excluding respondent no.3 from

bequeath of the immovable property. As noted above, there

is no evidence that deceased had understood the contents of

the Will Ex.PW1/H before signing it. In this background,

exclusion of respondent no.3 is also a grave suspicious

circumstance which has also remained unexplained. The

same cast doubt as to the genuineness of Will Ex.PW1/H.”

17.6. Yet further, the High Court also noticed that though respondent No.

1 resided only one floor above the testatrix and was also maintaining good

relations with her, but only the appellant was called at the time of execution

of the Will and no reason was provided for not calling the respondent No. 1.

That apart, the High Court also took note of the fact that respondent No. 1

was made aware of the execution of the Will only after three years from the

date of its execution. The execution of the Will in secrecy, without informing

the other legal heirs, and without affording explanation for such an act, was

also considered as another unexplained suspicious circumstance.

17.7. The High Court also referred to various contradictions in the

testimonies of the appellant and the said two attesting witnesses on the

material aspects concerning the execution of Will by testatrix, particularly as

to how the handwritten portion was scribed on the document and as

regards discussion concerning the contents of the document; and found

such contradictions to be serious in nature, creating doubt about the

execution of Will Ex. PW1/H in accordance with law. After examining the

relevant parts of evidence, the High Court observed and found as under:-

“48. Further, there are serious contradictions in the testimony

of attesting witnesses i.e. PW2 and PW3 and that of

appellant on material aspects pertaining to the execution of

the Will. In affidavit Ex. P1 the appellant has stated that the

testatrix had brought out a partly typed Will and further wrote

in her own hand the opening and closing paragraphs of the

Will Ex. PW1/H. In cross-examination, she has stated that

she does not know whether she had written on the Will or

something else. Sh. Urvinder S. Kohli PW2 has stated that

the handwritten portion on the Will Ex. PW1/H was written by

the testatrix of her own. Sh. Manjit Ahluwalia PW3 has stated

in cross-examination that the testatrix was having one draft

out of which she copied something in her own handwriting on

Will Ex. PW1/H. All the three witnesses have deposed

differently as to how handwritten portion was written on Will

Ex. PW1/H. There is also contradiction as regards discussion

about the contents of Will Ex. PW1/H by testatrix with the

attesting witnesses. The appellant has stated in her crossexamination

that her mother had discussed the contents of

Will with the witnesses whereas both the attesting witnesses

have denied that the contents of Will were discussed by the

testatrix. PW2 has also stated in the cross-examination that

he even did not question the testatrix on the same. There is

also contradiction about the manner of taking out of Will at

the time the witnesses had reached the house of testatrix.

The attesting witness PW2 has deposed that the Will was not

produced before him when he was present with the testatrix

and appellant. According to him, when PW3 had come, only

then the Will was produced. On the other hand, Sh. Manjit

Ahluwalia PW3 has deposed that when he had reached the

house of testatrix Will Ex. PW1/H had already been taken out

by the testatrix before he reached her house. The above

contradictions are serious in nature and create a doubt about

the execution of Will Ex. PW1/H in accordance with law.”

17.8. Taking into comprehension the aforesaid observations and findings,

it is apparent that the High Court, after an independent analysis of the

evidence on record, concurred with the major findings of the Trial Court as

regards various suspicious circumstances which remained unexplained and

which operated against genuineness of the document propounded as Will

of the mother of the parties. However, that was not the end of the matter

because another doubtful factor was also analysed by the High Court as

regards payment of a sum of Rs. 25,000/- by the appellant to the daughter

of the attesting witness PW-3 Major General Manjit Ahluwalia, through

cheque from an account jointly maintained in the name of testatrix and the

appellant but, after the death of the testatrix. The contesting respondents

claimed that the aforesaid payment was made in order to garner favour

from the attesting witness PW-3. In this regard, the stand of the appellant

had been that such an amount was paid not only to the daughter of PW-3

but also to the daughter of respondent No. 1 and to the sons of appellant as

the testatrix wanted to gift the said amount to them. Interestingly, in order to

buttress this stand of the appellant that the amount was paid to the

daughter of PW-3 as per the wishes of testatrix, the learned counsel for the

appellant before the High Court referred to the alleged third page of the

Will. After noticing such a submission made on behalf of the appellant with

reliance on the alleged third page of the Will, the High Court referred to the

very same proceedings of the Trial Court which we have referred in detail

hereinbefore, where the respondents wanted to produce the alleged third

page of the Will but the appellant denied the very existence of any such

third page of the Will in question. The High Court found that the said third

page of the Will was never produced before the Trial Court; and observed

that even if existing, the alleged third page of the Will does not dispel the

suspicious circumstances. This part of the discussion and observations of

the High Court, in paragraph 49 of the impugned judgment, could be

usefully extracted as under: –

“49. It has also come in the evidence that Rs. 25000/-

was paid by the appellant to the daughter of the attesting

witness Major General Manjit Ahluwalia PW3 through cheque

Ex. R3W1-C from account jointly in the name of testatrix and

the appellant after the death of testatrix. The stand of

respondent No. 2 and 3 is that the aforesaid payment was

made in order to get favour from the attesting witness PW3

as such his evidence is not reliable. On the other hand, the

stand of the appellant is that the said amount was not only

paid to the daughter of PW3 but was also paid to the

daughter of respondent No. 2 and to the son of appellant as

the deceased/testatrix wanted to gift the said amount to

them. In support of the stand, learned counsel for appellant

has referred to the alleged third stage of Will in question. It

may be mentioned that the alleged third page of the Will

Ex.PW1/H is never produced by the appellant. Rather, when

the respondent No. 3 had moved an application for

production of the alleged third page of the Will, appellant had

denied the existence of said page. The third page of the Will

is never proved before the learned ADJ. Even assuming the

alleged third page exists, the same does not dispel the

suspicious circumstances as have been noted above. In

these circumstances, the contention of the appellant that the

alleged third page of Will Ex. PW1/H proves its validity has

no force.”

17.9. After taking note of the aforesaid inexplicable features, unusual

circumstances and unreliability of the witnesses, and finding no fault or

malafide in the respondent No. 1 contesting the matter at the later stage, the

High Court in its impugned judgment dated 27.06.2014, while concurring with

the findings of the Trial Court, dismissed the appeal and held that mere

signature on the Will by the testatrix was not sufficient to prove that the said

Will was duly executed after understanding the contents thereof. The High

Court concluded on the matter as follows:-

“51. In view of above discussion, the findings of learned ADJ

that Will Ex.PW1/H is surrounded by various suspicious

circumstances which has remained unexplained and the

possibility of aforesaid Will not duly executed by the

deceased after understanding its contents are confirmed. No

illegality or perversity is seen in the findings given by the

learned ADJ. No case is made out for interference with the

impugned judgment.”

RIVAL CONTENTIONS

The Appellant

18. Being aggrieved by the judgment so passed by the High Court

dismissing her appeal and maintaining rejection of her prayer for grant of

probate, the petitioner-appellant has preferred this appeal by special leave.

Assailing the impugned judgments, learned counsel for the appellant has

strenuously contended that due execution of the Will as per the

requirements of the Succession Act having been proved in accordance with

procedure prescribed by the Evidence Act; and no cogent reason or

circumstance having been established on record against the genuineness

of the contested Will, a clear case for grant of probate is made out but the

Trial Court as also the High Court have proceeded to reject the prayer of

the appellant on entirely baseless considerations while doubting the Will on

the so-called suspicious circumstances, though there is none.

18.1. Elaborating on her submissions, the learned counsel for the

appellant has submitted that a Will has to be proved like any other

document but, it has to satisfy the requirements of Section 63 of the

Succession Act in the manner that for due execution, the testator has to

sign or affix his mark on the Will or it has to be signed by some other person

in the presence of testator and under his direction; and the Will has to be

attested by two or more witnesses, each of whom has seen such signing or

affixation by testator or by other person acting as per the directions of the

testator. Further to that, as per Section 68 of the Evidence Act, at least one

attesting witness has to be examined in proof of a Will. The learned counsel

would submit that in the present case, all the requirements of Section 63 of

the Succession Act are duly satisfied in the execution of the Will in question;

and the same has been duly proved with examination of both the attesting

witnesses before the Court as PW-2 and PW-3. The learned counsel has

contended that the appellant having duly discharged her burden and

nothing concrete having been brought on record so as to create any

legitimate suspicion, there is no reason to deny probate as prayed for.

18.2. While asserting the case of the appellant for grant of probate in

relation to the Will in question, the learned counsel has, in the first place,

questioned the standing and stance of the respondents in attempting to

raise certain issues about the Will in question.

18.2.1. As regards respondent No. 1, learned counsel for the appellant has

contended that she has no locus either to lead evidence or to doubt the

validity and genuineness of the Will for the reason that she did not file any

objections before the Trial Court and as such, inevitably, had accepted the

execution of the Will in question as being the last testament of her mother.

The learned counsel would submit that the applications filed by respondent

No. 1, for recall of the appellant for the purpose of further cross-examination

and for permission to file written statement were rejected by the Trial Court

and she did not challenge the orders so passed against her and thereby,

such orders have attained finality. The learned counsel has submitted, with

reference to Section 268 of Succession Act with Order VIII Rule 10 of CPC

as also Order XIV Rule 1 (6) read with Order XV Rule 2 CPC, that the

status of respondent No. 1 remains to be that of a defendant who is not at

issue with the plaintiff; and in the given circumstances, all the suggestions

sought to be made on her behalf deserve no consideration. With reference

to the decision in Bachhaj Nahar v. Nilima Mandal and Anr.: (2008) 17

SCC 491, the learned counsel has submitted that evidence led in without

pleadings by the respondent No. 1 remains inadmissible. The learned

counsel has also submitted that it is for the first time before this Court that a

new plea of fact was introduced by the respondent No. 1 in the written

submissions as regards the status of relationship between the respondent

No. 1 and her mother; and that the provisions under Order VI Rule 7 of

CPC prevent introduction of new grounds of claim except by way of

amendment. The learned counsel has emphatically argued that from the

very beginning, the premise of respondent No. 1 had been that she

admitted the genuineness of the Will and therefore, a stand contrary to the

same cannot now be raised by her before this Court.

18.2.2. As regards respondent No. 2, learned counsel for the appellant has

referred to the objections filed by him and has submitted that most of the

objections being totally baseless and untenable, were clearly rejected by

the Trial Court like those suggested as if the Will in question was forged and

fabricated or those seeking to question the disposing state of mind of the

testatrix. The learned counsel has also submitted that the respondent No. 2

went on to suggest ancestral character of the property in question and the

Trial Court has rightly rejected such objections too with reference to the

decision in Chiranjilal (supra) because title of the property is not to be

decided in probate proceeding. The learned counsel has further submitted

that the suggestions by this respondent about his cordial relations with the

testatrix have not been established on record and a few photographs and

letters produced by him do not establish that he was in thick of relations

with the testatrix; rather, as per the evidence on record, he remained away

and detached from the family and he was not even aware about the ailment

of the testatrix. Thus, according to the learned counsel, even the objections

of respondent do not make out a case of any such suspicious circumstance

for which the genuineness of the Will in question may be doubted.

18.3. As regards the testimonies of the two attesting witnesses, the

learned counsel would submit that they have clearly proved the material

facts relating to due execution of Will and attestation by them; and the

doubts sought to be thrown upon them with reference to some minor and

natural discrepancies, or their acquaintance with the appellant are of no

consequence. The learned counsel has contended that the Will was

executed in the year 2003 while the testimonies of the witnesses were

recorded only in the year 2008 and therefore, minor variations on details as

to who arrived first or what portion was written on the Will etc., do not affect

the substance of their evidence.

18.4. The learned counsel has referred to various decisions like those in

H. Venkatachala Iyengar (supra), Madhukar D. Shende v. Tarabai Aba

Shedage: (2002) 2 SCC 85; and Joyce Primrose Prestor v. Vera Marie

Vas: (1996) 9 SCC 324 to submit that though the initial onus to prove the

Will is on the propounder but once that burden is discharged, any suspicion

alone cannot form the foundation of judicial verdict; and any suggestion

about suspicion ought to be examined by the Court while guarding against

conjectures and mere fantasy of a doubting mind. The learned counsel has

iterated the principles in the decisions aforesaid that there ought to be real,

germane and valid suspicious features for which the propounded Will may

be called in question, but there had been no such feature or circumstance

in the present case.

18.5. As regards the manner of execution of the Will in question, the

learned counsel has submitted that the ratio of Joyce Primrose Prestor

(supra), that greater degree of presumption arises in the case of a

“holograph” Will, is applicable to the present case too, where the significant

contents relating to the particulars of the testatrix and her unequivocal

bequeath, in the opening and concluding passages, were duly written in her

own hand by the testatrix.

18.6. While dealing with the suspicious circumstances taken into

consideration by the Trial Court and the High Court, the learned counsel

has submitted that the alleged circumstances were either non-existent, or

were not pleaded, or were not of any suspicion at all.

18.6.1. The learned counsel would submit that the circumstances like the

appellant being the major beneficiary; she playing an active role in

execution of the Will; exclusion of son from the benefit of estate; the other

daughter virtually not getting any share; and the manner of writing of the

Will were neither specifically pleaded nor they operate against the

genuineness of the Will in question. Further, according to the learned

counsel, the circumstances like non-information of execution of Will to the

legal heirs; vague contents of Will; and contradictions in the statements of

witnesses are, on the face of it, imaginary and conjectural and could only be

ignored.

18.6.2. The learned counsel has contended, with reference to the decisions

in Leela Rajagopal and Ors. v. Kamala Menon Cocharan and Ors.:

(2014) 15 SCC 570, Ved Mitra Verma v. Dharam Deo Verma: (2014) 15

SCC 578; Mahesh Kumar v. Vinod Kumar and Ors.: (2012) 4 SCC 387;

Savithri and Ors. v. Karthyayani Amma and Ors.: (2007) 11 SCC 621;

Pentakota Satyanarayana and Ors. v. Pentakota Seetharatnam and

Ors.: (2005) 8 SCC 67; Uma Devi Nambiar and Ors.v. T.C. Sidhan:

(2004) 2 SCC 321; Ramabai Padmakar Patil and Ors. v. Rukminibai

Vishnu Vekhande and Ors.: (2003) 8 SCC 537 and Rabindra Nath

Mukherjee and Anr. v. Panchanan Banerjee and Ors.: (1995) 4 SCC

459, that mere presence of the propounder/beneficiary of a Will at the time

of its execution; or exclusion of the natural heirs from any benefit; or

acquaintance of the propounder with any witness are not of such suspicious

circumstances as to create legitimate doubts on the genuineness of the

Will.

18.6.3. As regards the question of monetary benefits to the attesting

witnesses, it is maintained on behalf of the appellant that there had not

been any monetary benefit to PW-2; and monetary benefit to the daughter

of PW-3 has to be seen in the background that the said witness is a Major

General and was closely related to the testatrix; there is no allegation as to

the credibility of the said witness; and the frivolous doubt is being raised on

his credibility only where an amount of Rs. 25,000/- ‘out of love and

affection’ has been given in the year 2006.

18.7. Thus, it is submitted that the Will in question is the genuine last Will

of the mother of parties; and the appellant being the executor, may be

granted probate as prayed for.

The respondent No. 2

19. While countering the submissions made on behalf of the appellant,

learned counsel for the respondent No. 2, son of testatrix who had filed the

objections and has consistently contested the matter, has recounted the

suspicious circumstances taken into account by the Trial Court and the High

Court and has contended that the appellant has utterly failed to explain any

of them and hence, the Will in question cannot be said to have been made

by the testatrix after understanding the meaning and purport of its contents.

19.1. In the forefront of arguments, learned counsel for the respondent

No. 2 has submitted that the appellant, who is admittedly the major

beneficiary of the disputed bequest, indeed played a prominent role in

execution of the Will in question and then, tried to deliberately conceal this

fact of her active role in making of the document. The learned counsel has

elaborated on these submissions with reference to the pleadings and

averments of the appellant at various stages of proceedings where she

consistently maintained that she ‘had role in the making and execution’ of

the Will in question. The learned counsel has also referred to the statement

of the appellant in the cross-examination to the effect that the testatrix did

not ask her to find witnesses to the Will and that she might have called the

witnesses to the Will on her own. These assertions of the appellant,

according to the learned counsel, are effectively contradicted by PW-2

Urvinder S Kohli, who maintained that it was the appellant who, on

18.05.2003, asked him to come to the testatrix’s house and thereupon he

agreed to come on 20.05.2003. With reference to the decision in H.

Ventakachala Iyengar (supra), the learned counsel has argued that when

the propounder plays an active role in execution of Will and gets major

benefit thereunder, that itself is a suspicious circumstance and the

propounder must remove the suspicion by clear and satisfactory evidence,

which the appellant has failed to adduce.

19.2. Further, the learned counsel for the respondent No. 2 has referred to

the other parts of the testimony of PW-2 Urvinder S Kohli to submit that this

witness was barely known to the testatrix whereas he was close to the

appellant for about 30 years. With reference to the decision of this Court in

Ramchandra Rambux v. Champabai and Ors.: AIR 1965 SC 354 and

that of Delhi High Court in Rajesh Chand and Ors. v. Dayawati and Ors.:

ILR (1981) 2 Delhi 477, the learned counsel has contended that closeness

of attesting witness of the Will with the propounder is itself a suspicious

circumstance; and the appellant has failed to explain this circumstance

either.

19.3. The learned counsel for the respondent has further made scathing

remarks in relation to the bequest as proposed in the Will in question and

has submitted that without any rhyme or reason, such unjust and

unreasonable distribution of the assets of the testatrix has been proposed

which was not likely to be made by the mother of parties, particularly when

she had nothing against her son and against the other daughter.

19.3.1. The learned counsel would submit that in fact, the other daughter

(respondent No. 1) of the testatrix was a widow with an unmarried daughter;

and she had been given the first floor of the house (which was the property

of testatrix) for residence; and she was taking care of testatrix, who was

suffering from cancer. In the given circumstances, there was no reason that

testatrix would have left her widowed and needy daughter at the mercy of

the appellant with vague and uncertain conditions of raising upper story

construction by the appellant, as found in the Will in question. The learned

counsel would also submit that the bequeath made by the testatrix could be

limited to her property alone and cannot include a property constructed by

another person; that a property constructed using one’s own money will be

the exclusive property of that person and as such, the conditional bequest

made in the present case, to appear as if the respondent No. 1 was likely to

get some property, had, in fact, been sham and illusory. According to the

learned counsel, such wordings in the Will as also the payments and

handing over car to the daughter of respondent No. 1 seems to have

precluded her from contesting the matter in the first place but that does not

give any weight or support to the Will in question.

19.3.2. While relying on the same decisions and with reference to the

material on record, the learned counsel has submitted that respondent No.

2, though having remained away because of his enlistment in the Army, had

always been in good terms with his parents; and there was no reason that

his mother, the testatrix, would have given him only a pittance of amount in

the bank while disinheriting him from the immovable property.

19.3.3. The learned counsel has relied on the decision in Rani Purnima

Debi (supra) and has also referred to the decision in Ram Piari v.

Bhagwant and Ors.: AIR 1990 SC 1742 to submit that disinheritance

among heirs of equal degrees without providing any reason for exclusion of

daughter also amounts to a suspicious circumstance.

19.4. The learned counsel has also questioned the manner of writing and

executing the document in question. The learned counsel has referred to

the inconsistencies in the depositions of the witnesses in regard to the

questions as whether the contents of the Will in question were made known

to the testatrix and whether the same were discussed with the witnesses.

The learned counsel would submit that the testatrix was barely 10th

standard pass and was, obviously not conversant with such legal jargon as

would appear in the body of the Will in question. The appellant has

attempted to say that she had no role in typing/scribing of the document

and as per the witnesses, the contents were not discussed with them. In

such a scenario, there remains another unexplained suspicious

circumstance, as to who had drafted the Will in question and who prepared

the alleged note for the testatrix wherefrom, she was to write at the opening

and closing parts of the Will. The learned counsel has submitted that when

the main part of the Will was typed, it is questionable why the

inconsequential portion was handwritten; and these lacunas in the evidence

of the appellant raises a possibility that the Will was neither prepared nor

understood by the testatrix. The learned counsel has referred to the

decision in Krishan Dass Gupta v. The State & Ors: 2012 SCC OnLine

DEL 977

19.5. Another long deal of arguments by the learned counsel for the

respondent No. 2 has been with reference to the alleged third page of the

Will. The learned counsel has referred to the very same proceedings in the

Trial Court which we have recounted hereinbefore; and has submitted that

in the Trial Court, appellant consistently maintained that there was no third

page of the Will but when the issue of payment of a sum of Rs. 25,000/- to

the daughter of the attesting witness PW-3 cropped up before the High

Court, such a payment was sought to be justified with reference to the very

same third page of the Will in question. Such shifting stand of the appellant,

according to the learned counsel, gives rise to more suspicions; and it

appears seriously questionable if the Will in question was indeed the last

Will of the testatrix and was executed with the contents as desired by her.

The respondent No. 1

20. On the other flank of opposition, learned counsel for respondent No.

1 has maintained that this respondent has all through disputed the very

execution of the Will by her mother; and the suspicious circumstances

having not been removed, the prayer for grant of probate has rightly been

rejected.

20.1. In the first place, learned counsel for respondent No. 1 has

vehemently countered the submissions that this respondent had accepted

the claim of the appellant for probate of the Will in question and she is not

entitled to make the submissions in contest. The learned counsel has

referred to the facts that even if this respondent did not file her written

statement, she indeed led evidence rebutting the case of the appellant and

the Courts have returned concurrent findings that her contest was neither

an afterthought nor malafide. The learned counsel has referred to the

aforementioned decisions in H. Venkatachala Iyengar, Rani Purnima

Debi and Smt. Jaswant Kaur to submit that Probate Court is a Court of

conscience; and where the propounder is to satisfy the conscience of the

Court with removal of suspicious circumstances, the respondent No 1, elder

and widowed daughter of the testatrix, has every right to make submissions

to assist the Court in such an enquiry. Without prejudice, the learned

counsel has further submitted that even in a civil case where right of filing

written statement is closed, the defendant is not precluded from

demonstrating that the evidence led by the plaintiff is not sufficient to make

out a case for grant of relief as prayed for. The learned counsel has, inter

alia, referred to Section 58 of the Evidence Act; Order VIII Rule 5(2) and

Order VIII Rule 10 CPC and has relied on the decision in Balraj Taneja

and Anr. v. Sunil Madan and Anr.: (1999) 8 SCC 396. The learned

counsel has also pointed out that appellant never objected to the evidence

of the respondent No. 1 and while relying on the decision in Modula India

v. Kamakshya Singh Deo: (1988) 4 SCC 619, has contended that the

submissions of respondent No. 1 cannot be discarded.

20.2. The learned counsel has referred to the position of respondent No. 1

and her relationship with the testatrix with the submissions that respondent

No. 1 is the eldest daughter of the testatrix, being 10 years older to the

appellant and three years older to the respondent No. 2; that the testatrix

being aware of her adverse circumstances, had given her the first floor of

the property (which is the subject-matter of the present proceeding); that

the relationship between the testatrix and the respondent No. 1 had always

been very good; that testatrix being a cancer patient, the respondent No. 1

was taking her for treatment to Army Hospital; that due to the physical

proximity while residing in the same building, the testatrix and the

respondent No. 1 had special bonds between them. In the given setup,

according to the learned counsel, it seems quite unnatural that the testatrix

would leave the respondent No. 1 at the mercy of appellant with such

uncertain stipulations as contained in the contested Will.

20.3. Arguing further, the learned counsel has contended that though the

appellant has attempted to suggest that the respondent No. 1 was excluded

from the first floor of the property in question but, there had not been any

reason for such exclusion. The learned counsel has contended what has

been created by the Will in question is only an illusory and vague bequest in

relation to the respondent No. 1 for: a) the bequest to respondent No.1 is of

a floor above the first floor, which is not in existence; b) no time frame is

provided within which the appellant may choose to execute either of the two

options and no corresponding option is provided to respondent No.1

meaning thereby, that the bequest made by virtue of the Will in favour of

respondent No.1 has been indefinitely postponed; c) the entire property is

vested in the appellant immediately upon the demise of the testatrix

including the bequest made to respondent No. 1; and d) the nature and

quality of the expected construction has not been specified. According to

the learned counsel, practically there is no effective bequest in relation to

the respondent No. 1 and there is no reason for the testatrix adopting the

course as suggested.

20.4. The learned counsel has relied on the decisions of this Court in B.

Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. : (2006) 13 SCC 449;

H. Ventakachala Iyengar; and Rani Purnima Debi (supra) amongst

others, to submit that the Probate Court can investigate into the matter of a

Will despite the fact that the signature found thereon has been proved or

ingredients of Section 68 of the Evidence Act has been complied with. The

learned counsel has referred to the definition of the expression “suspicion”

in P. Ramanatha Aiyar’s Advanced Law Lexicon and has also relied upon

the decision in Indu Bala (supra) to submit that suspicion permits the Court

to realistically imagine any doubtful or distrustful facet of a case; and in

testamentary jurisdiction, the Courts are permitted to ferret out doubtful

circumstances, which cannot be described as conjecture or surmise.

20.5. The learned counsel has again recounted various circumstances,

including manner of making of the Will and contradictions/inconsistencies in

the statements of the witnesses examined by the appellant, which have

been taken into account in the impugned judgments and have also been

referred by the learned counsel for the respondent No. 2; which need not be

repeated. The learned counsel has also placed before us a flow chart

reflecting thirteen aspects of findings, including those of suspicious

circumstances, which have been returned concurrently against the

appellant and has contended that no case for interference with such

concurrent findings is made out. The counsel has additionally relied on the

decision in Apoline D’Souza v. John D’Souza: AIR 2007 SC 2219.

20.6. In another line of arguments, learned counsel for the respondent No.

1 has contended that the Will in question cannot have greater sanctity only

because the opening and closing parts are handwritten; rather it is strange

that the testatrix chose not to write the main bequest by hand and then, the

handwritten portion of the Will in question is placed in a squeezed manner

and is not attested by any witness. The learned counsel would submit that

such interlineations only go to show that additions have been made in the

Will subsequent to its execution and failure to assign the reason behind

such a course is fatal to the case put up by the propounder. The learned

counsel has relied on the decision in Dayananadi v. Rukma D. Suvarna &

Ors.: (2012) 1 SCC 510 in support of these contentions.

21. We have bestowed anxious consideration to the rival submissions

with reference to the law applicable and have also scanned through all the

records pertaining to this case, including the records of the Trial Court and

the High Court.

WILL – PROOF AND SATISFACTION OF THE COURT

22. As noticed, the basic point for determination in this appeal is as to

whether the Trial Court and the High Court were justified in declining to

grant probate in relation to the Will dated 20.05.2003 as prayed for.

Obviously, a just and proper determination of this point would revolve

around the legal principles applicable as also the relevant factual aspects of

the case. Before entering into the factual aspects and the questions in

controversy, appropriate it would be to take note of the applicable legal

provisions and principles concerning execution of a Will, its proof, and its

acceptance by the Court.

23. It remains trite that a Will is the testamentary document that comes

into operation after the death of the testator. The peculiar nature of such a

document has led to solemn provisions in the statutes for making of a Will

and for its proof in a Court of law. Section 59 of the Succession Act provides

that every person of sound mind, not being a minor, may dispose of his

property by Will. A Will or any portion thereof, the making of which has been

caused by fraud or coercion or by any such importunity that has taken away

the free agency of the testator, is declared to be void under Section 61 of

the Succession Act; and further, Section 62 of the Succession Act enables

the maker of a Will to make or alter the same at any time when he is

competent to dispose of his property by Will. Chapter III of Part IV of the

Succession Act makes the provision for execution of unprivileged Wills (as

distinguished from privileged Wills provided for in Chapter IV) with which we

are not concerned in this case.

23.1. Sections 61 and 63 of the Succession Act, relevant for the present

purpose, could be usefully extracted as under: –

“61. Will obtained by fraud, coercion or importunity.- A

Will or any part of a Will, the making of which has been

caused by fraud or coercion, or by such importunity as takes

away the free agency of the testator, is void.

*** *** ***

63. Execution of unprivileged Wills.-Every testator, not

being a soldier employed in an expedition or engaged in

actual warfare, or an airman so employed or engaged, or a

mariner at sea, shall execute his Will according to the

following rules:-

(a) The testator shall sign or shall affix his mark to the

Will, or it shall be signed by some other person in his

presence and by his direction.

(b) The signature or mark of the testator, or the

signature of the person signing for him, shall be so placed

that it shall appear that it was intended thereby to give

effect to the writing as a Will.

each of whom has seen the testator sign or affix his mark

to the Will or has seen some other person sign the Will, in

the presence and by the direction of the testator, or has

received from the testator a personal acknowledgment of

his signature or mark, or the signature of such other

person; and each of the witnesses shall sign the Will in the

presence of the testator, but it shall not be necessary that

more than one witness be present at the same time, and

no particular form of attestation shall be necessary.”

23.2. Elaborate provisions have been made in Chapter VI of the

Succession Act (Sections 74 to 111), for construction of Wills which, in their

sum and substance, make the intention of legislature clear that any

irrelevant misdescription or error is not to operate against the Will; and

approach has to be to give effect to a Will once it is found to have been

executed in the sound state of mind by the testator while exercising his own

free will. However, as per Section 81 of the Succession Act, extrinsic

evidence is inadmissible in case of patent ambiguity or deficiency in the

Will; and as per Section 89 thereof, a Will or bequest not expressive of any

definite intention is declared void for uncertainty. Sections 81 and 89 read

as under:-

“81. Extrinsic evidence inadmissible in case of patent

ambiguity or deficiency.- Where there is an ambiguity or

deficiency on the face of a Will, no extrinsic evidence as to

the intentions of the testator shall be admitted.

*** *** ***

89. Will or bequest void for uncertainty.- A Will or bequest

not expressive of any definite intention is void for uncertainty.”

Moreover, it is now well settled that when the Will is surrounded by

suspicious circumstances, the Court would expect that the legitimate

suspicion should be removed before the document in question is accepted

as the last Will of the testator.

23.3. As noticed, as per Section 63 of the Succession Act, the Will ought

to be attested by two or more witnesses. Hence, any document propounded

as a Will cannot be used as evidence unless at least one attesting witness

has been examined for the purpose of proving its execution, if such witness

is available and is capable of giving evidence as per the requirements of

Section 68 of the Evidence Act, that reads as under: –

“68. Proof of execution of document required by law to

be attested.-If a document is required by law to be attested,

it shall not be used as evidence until one attesting witness at

least has been called for the purpose of proving its execution,

if there be an attesting witness alive, and subject to the

process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting

witness in proof of the execution of any document, not being

a Will, which has been registered in accordance with the

provisions of the Indian Registration Act, 1908 (16 of 1908),

unless its execution by the person by whom it purports to

have been executed is specifically denied.”

24. We may now take note of the relevant principles settled by the

consistent decisions in regard to the process of examination of a Will when

propounded before a Court of law.

24.1. In the case of H. Venkatachala Iyengar (supra), a 3-Judge Bench

of this Court traversed through the vistas of the issues related with

execution and proof of Will and enunciated a few fundamental guiding

principles that have consistently been followed and applied in almost all the

cases involving such issues. The synthesis and exposition by this Court in

paragraphs 18 to 22 of the said decision could be usefully reproduced as

under:-

“18. What is the true legal position in the matter of proof of

wills? It is well known that the proof of wills presents a

recurring topic for decision in courts and there are a large

number of judicial pronouncements on the subject. The party

propounding a will or otherwise making a claim under a will is

no doubt seeking to prove a document and, in deciding how it

is to be proved, we must inevitably refer to the statutory

provisions which govern the proof of documents. S. 67 and

68, Evidence Act are relevant for this purpose. Under S. 67, if

a document is alleged to be signed by any person, the

signature of the said person must be proved to be in his

handwriting, and for proving such a handwriting under Ss. 45

and 47 of the Act the opinions of experts and of persons

acquainted with the handwriting of the person concerned are

made relevant. Section 68 deals with the proof of the

execution of the document required by law to be attested;

and it provides that such a document shall not be used as

evidence until one attesting witness at least has been called

for the purpose of proving its execution. These provisions

prescribe the requirements and the nature of proof which

must be satisfied by the party who relies on a document in a

Court of law. Similarly, Ss. 59 and 63 of the Indian

Succession Act are also relevant. Section 59 provides that

every person of sound mind, not being a minor, may dispose

of his property by will and the three illustrations to this section

indicate what is meant by the expression "a person of sound

mind" in the context. Section 63 requires that the testator

shall sign or affix his mark to the will or it shall be signed by

some other person in his presence and by his direction and

that the signature or mark shall be so made that it shall

appear that it was intended thereby to give effect to the

writing as a will. This section also requires that the will shall

be attested by two or more witnesses as prescribed. Thus

the question as to whether the will set up by the

propounder is proved to be the last will of the testator

has to be decided in the light of these provisions. Has

the testator signed the will? Did he understand the

nature and effect of the dispositions in the will? Did he

put his signature to the will knowing what it contained?

Stated broadly it is the decision of these questions

which determines the nature of the finding on the

question of the proof of wills. It would prima facie be true

to say that the will has to be proved like any other document

except as to the special requirements of attestation

prescribed by S. 63 of the Indian Succession Act. As in the

case of proof of other documents so in the case of proof of

wills it would be idle to expect proof with mathematical

certainty. The test to be applied would be the usual test of the

satisfaction of the prudent mind in such matters.

19. However, there is one important feature which

distinguishes wills from other documents. Unlike other

documents the will speaks from the death of the testator, and

so, when it is propounded or produced before a Court, the

testator who has already departed the world cannot say

whether it is his will or not; and this aspect naturally

introduces an element of solemnity in the decision of the

question as to whether the document propounded is proved

to be the last will and testament of the departed testator.

Even so, in dealing with the proof of wills the Court will start

on the same enquiry as in the case of the proof of

documents. The propounder would be called upon to show by

satisfactory evidence that the will was signed by the testator,

that the testator at the relevant time was in a sound and

disposing state of mind, that he understood the nature and

effect of the dispositions and put his signature to the

document of his own free will. Ordinarily when the evidence

adduced in support of the will is disinterested, satisfactory

and sufficient to prove the sound and disposing state of the

testator's mind and his signature as required by law, Courts

would be justified in making a finding in favour of the

propounder. In other words, the onus on the propounder

can be taken to be discharged on proof of the essential

facts just indicated.

20. There may, however, be cases in which the execution

of the will may be surrounded by suspicious

circumstances. The alleged signature of the testator may be

very shaky and doubtful and evidence in support of the

propounder's case that the signature in question is the

signature of the testator may not remove the doubt created

by the appearance of the signature; the condition of the

testator's mind may appear to be very feeble and debilitated;

and evidence adduced may not succeed in removing the

legitimate doubt as to the mental capacity of the testator; the

dispositions made in the will may appear to be unnatural,

improbable or unfair in the light of relevant circumstances; or,

the will may otherwise indicate that the said dispositions may

not be the result of the testator's free will and mind. In such

cases the Court would naturally expect that all legitimate

suspicions should be completely removed before the

document is accepted as the last will of the testator. The

presence of such suspicious circumstances naturally

tends to make the initial onus very heavy; and, unless it

is satisfactorily discharged, Courts would be reluctant to

treat the document as the last will of the testator. It is true

that, if a caveat is filed alleging the exercise of undue

influence, fraud or coercion in respect of the execution of the

will propounded, such pleas may have to be proved by the

caveators; but, even without such pleas circumstances may

raise a doubt as to whether the testator was acting of his own

free will in executing the will, and in such circumstances, it

would be a part of the initial onus to remove any such

legitimate doubts in the matter.

21. Apart from the suspicious circumstances to which we

have just referred in some cases the wills propounded

disclose another infirmity. Propounders themselves take a

prominent part in the execution of the wills which confer

on them substantial benefits. If it is shown that the

propounder has taken a prominent part in the execution

of the will and has received substantial benefit under it,

that itself is generally treated as a suspicious

circumstance attending the execution of the will and the

propounder is required to remove the said suspicion by

clear and satisfactory evidence. It is in connection with

wills that present such suspicious circumstances that

decisions of English Courts often mention the test of the

satisfaction of judicial conscience. It may be that the

reference to judicial conscience in this connection is a

heritage from similar observations made by ecclesiastical

Courts in England when they exercised jurisdiction with

reference to wills; but any objection to the use of the word

‘conscience’ in this context would, in our opinion, be purely

technical and academic, if not pedantic. The test merely

emphasizes that, in determining the question as to whether

an instrument produced before the Court is the last will of the

testator, the Court is deciding a solemn question and it must

be fully satisfied that it had been validly executed by the

testator who is no longer alive.

22. It is obvious that for deciding material questions of fact

which arise in applications for probate or in actions on wills,

no hard and fast or inflexible rules can be laid down for the

appreciation of the evidence. It may, however, be stated

generally that a propounder of the will has to prove the

due and valid execution of the will and that if there are

any suspicious circumstances surrounding the

execution of the will the propounder must remove the

said suspicions from the mind of the Court by cogent

and satisfactory evidence. It is hardly necessary to add that

the result of the application of these two general and broad

principles would always depend upon the facts and

circumstances of each case and on the nature and quality of

the evidence adduced by the parties. It is quite true that, as

observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W

N 895 : (AIR 1946 PC 156), "where a will is charged with

suspicion, the rules enjoin a reasonable scepticism, not an

obdurate persistence in disbelief. They do not demand from

the Judge, even in circumstances of grave suspicion, a

resolute and impenetrable incredulity. He is never required to

close his mind to the truth". It would sound platitudinous to

say so, but it is nevertheless true that in discovering truth

even in such cases the judicial mind must always be open

though vigilant, cautious and circumspect.”

(emphasis supplied)

24.2. In Rani Purnima Debi (supra), this Court referred to the

aforementioned decision in H. Venkatachala Iyengar and further explained

the principles which govern the proving of a Will as follows:-

“5. Before we consider the facts of this case it is well to set

out the principles which govern the proving of a will. This was

considered by this Court in H. Venkatachala Iyengar v. B. N.

Thimmajamma, (1959) Supp (1) SCR 426: AIR 1959 SC 443.

It was observed in that case that the mode of proving a will

did not ordinarily differ from that of proving any other

document except as to the special requirement of attestation

prescribed in the case of a will by S. 63 of the Indian

Succession Act. The onus of proving the will was on the

propounder and in the absence of suspicious circumstances

surrounding the execution of the will proof of testamentary

capacity and signature of the testator as required by law was

sufficient to discharge the onus. Where, however, there were

suspicious circumstances, the onus would be on the

propounder to explain them to the satisfaction of the Court

before the will could be accepted as genuine. If the caveator

alleged undue influence, fraud or coercion, the onus would

be on him to prove the same. Even where there were no

such pleas but the circumstances gave rise to doubts, it

was for the propounder to satisfy the conscience of the

Court. Further, what are suspicious circumstances was also

considered in this case. The alleged signature of the testator

might be very shaky and doubtful and evidence in support of

the propounder's case that the signature in question was the

signature of the testator might not remove the doubt created

by the appearance of the signature. The condition of the

testator's mind might appear to be very feeble and debilitated

and evidence adduced might not succeed in removing the

legitimate doubt as to the mental capacity of the testator; the

dispositions made in the will might appear to be

unnatural, improbable or unfair in the light of relevant

circumstances; or the will might otherwise indicate that

the said dispositions might not be the result of the

testator's free will and mind. In such cases, the Court

would naturally expect that all legitimate suspicions should be

completely removed before the document was accepted as

the last will of the testator. Further, a propounder himself

might take a prominent part in the execution of the will

which conferred on him substantial benefits. If this was

so it was generally treated as a suspicious circumstance

attending the execution of the will and the propounder was

required to remove the doubts by clear and satisfactory

evidence. But even when where there suspicious

circumstances and the propounder succeeded in removing

them, the Court would grant probate, though the will might be

unnatural and might cut off wholly or in part near relations.”

(emphasis supplied)

24.3. In the case of Indu Bala Bose (supra), this Court again said,-

“7. This Court has held that the mode of proving a Will does

not ordinarily differ from that of proving any other document

except to the special requirement of attestation prescribed in

the case of a Will by Section 63 of the Succession Act. The

onus of proving the Will is on the propounder and in the

absence of suspicious circumstances surrounding the

execution of the Will, proof of testamentary capacity and the

signature of the testator as required by law is sufficient to

discharge the onus. Where however there are suspicious

circumstances, the onus is on the propounder to explain

them to the satisfaction of the court before the court

accepts the Will as genuine. Even where circumstances

give rise to doubts, it is for the propounder to satisfy the

conscience of the court. The suspicious circumstances

may be as to the genuineness of the signatures of the

testator, the condition of the testator's mind, the

dispositions made in the Will being unnatural,

improbable or unfair in the light of relevant

circumstances, or there might be other indications in the

Will to show that the testator's mind was not free. In such a

case the court would naturally expect that all legitimate

suspicions should be completely removed before the

document is accepted as the last Will of the testator. If the

propounder himself takes a prominent part in the execution of

the Will which confers a substantial benefit on him, that is

also a circumstance to be taken into account, and the

propounder is required to remove the doubts by clear and

satisfactory evidence. If the propounder succeeds in

removing the suspicious circumstances the court would grant

probate, even if the Will might be unnatural and might cut off

wholly or in part near relations.

8 . Needless to say that any and every circumstance is

not a “suspicious” circumstance. A circumstance would

be “suspicious” when it is not normal or is not normally

expected in a normal situation or is not expected of a

normal person.”

(emphasis supplied)

24.4. We may also usefully refer to the principles enunciated in the case

of Jaswant Kaur (supra) for dealing with a Will shrouded in suspicion, as

follows: –

“9. In cases where the execution of a will is shrouded in

suspicion, its proof ceases to be a simple lis between the

plaintiff and the defendant. What, generally, is an

adversary proceeding becomes in such cases a matter of the

court's conscience and then the true question which arises

for consideration is whether the evidence led by the

propounder of the will is such as to satisfy the

conscience of the court that the will was duly executed

by the testator. It is impossible to reach such satisfaction

unless the party which sets up the will offers a cogent and

convincing explanation of the suspicious circumstances

surrounding the making of the will.”

(emphasis supplied)

24.5. In the case of Uma Devi Nambiar (supra), this Court extensively

reviewed the case law dealing with a Will, including the Constitution Bench

decision of this Court in the case of Shashi Kumar Banerjee and Ors. v.

Subodh Kumar Banerjee and Ors.: AIR 1964 SC 529, and observed that

mere exclusion of the natural heirs or giving of lesser share to them, by

itself, will not be considered to be a suspicious circumstance. This Court

observed, inter alia, as under:-

“15. Section 63 of the Act deals with execution of unprivileged

Wills. It lays down that the testator shall sign or shall affix his

mark to the Will or it shall be signed by some other person in

his presence and by his direction. It further lays down that the

Will shall be attested by two or more witnesses, each of

whom has seen the testator signing or affixing his mark to the

Will or has seen some other person sign the Will, in the

presence and by the direction of the testator and each of the

witnesses shall sign the Will in the presence of the testator.

Section 68 of the Indian Evidence Act, 1872 (in short the

“Evidence Act”) mandates examination of one attesting

witness in proof of a Will, whether registered or not. The law

relating to the manner and onus of proof and also the duty

cast upon the court while dealing with a case based upon a

Will has been examined in considerable detail in several

decisions of this Court ……. A Constitution Bench of this

Court in Shashi Kumar Banerjee's case succinctly indicated

the focal position in law as follows: (AIR p. 531, para 4)

"The mode of proving a Will does not ordinarily differ

from that of proving any other document except as to

the special requirement of attestation prescribed in the

case of a Will by Section 63 of the Indian Succession

Act. The onus of proving the Will is on the propounder

and in the absence of suspicious circumstances

surrounding the execution of the Will, proof of

testamentary capacity and the signature of the testator

as required by law is sufficient to discharge the onus.

Where however there are suspicious circumstances, the

onus is on the propounder to explain them to the

satisfaction of the court before the court accepts the Will

as genuine. Where the caveator alleges undue

influence, fraud and coercion, the onus is on him to

prove the same. Even where there are no such pleas

but the circumstances give rise to doubts, it is for the

propounder to satisfy the conscience of the court. The

suspicious circumstances may be as to the genuineness

of the signature of the testator, the condition of the

testator's mind, the dispositions made in the Will being

unnatural, improbable or unfair in the light of relevant

circumstances or there might be other indications in the

Will to show that the testator's mind was not free. In

such a case the court would naturally expect that all

legitimate suspicion should be completely removed

before the document is accepted as the last Will of the

testator. If the propounder himself takes part in the

execution of the Will which confers a substantial benefit

on him, that is also a circumstance to be taken into

account, and the propounder is required to remove the

doubts by clear and satisfactory evidence. If the

propounder succeeds in removing the suspicious

circumstances the court would grant probate, even if the

Will might be unnatural and might cut off wholly or in

part near relations."

16. A Will is executed to alter the ordinary mode of

succession and by the very nature of things it is bound to

result in earlier reducing or depriving the share of natural

heirs. If a person intends his property to pass to his natural

heirs, there is no necessity at all of executing a Will. It is true

that a propounder of the Will has to remove all suspicious

circumstances. Suspicion means doubt, conjecture or

mistrust. But the fact that natural heirs have either been

excluded or a lesser share has been given to them, by itself

without anything more, cannot be held to be a suspicious

circumstance specially in a case where the bequest has been

made in favour of an offspring. As held in P.P.K. Gopalan

Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.: [1995] 2

SCR 585, it is the duty of the propunder of the Will to remove

all the suspected features, but there must be real, germane

and valid suspicious features and not fantasy of the doubting

mind. It has been held that if the propounder succeeds in

removing the suspicious circumstances, the court has to give

effect to the Will, even if the Will might be unnatural in the

sense that it has cut off wholly or in part near relations. ….. In

Rabindra Nath Mukherjee and Anr. v . Panchanan Banerjee

(dead) by LRs. and Ors.: AIR 1995 SC 1684, it was observed

that the circumstance of deprivation of natural heirs should

not raise any suspicion because the whole idea behind

execution of the Will is to interfere with the normal line of

succession and so, natural heirs would be debarred in every

case of Will. Of course, it may be that in some cases they are

fully debarred and in some cases partly.”

24.6. In the case of Mahesh Kumar (supra), this Court indicated the error

of approach on the part of the High Court while appreciating the evidence

relating to the Will as follows:-

“44. The issue which remains to be examined is whether the

High Court was justified in coming to the conclusion that the

execution of the will dated 10-2-1992 was shrouded with

suspicion and the appellant failed to dispel the suspicion? At

the outset, we deem it necessary to observe that the learned

Single Judge misread the statement of Sobhag Chand (DW3)

and recorded something which does not appear in his

statement. While Sobhag Chand categorically stated that he

had signed as the witness after Shri Harishankar had signed

the will, the portion of his statement extracted in the

impugned judgment gives an impression that the witnesses

had signed even before the executant had signed the will.

45. Another patent error committed by the learned Single

Judge is that he decided the issue relating to validity of the

will by assuming that both the attesting witnesses were

required to append their signatures simultaneously. Section

63(c) of the 1925 Act does not contain any such requirement

and it is settled law that examination of one of the attesting

witnesses is sufficient. Not only this, while recording an

adverse finding on this issue, the learned Single Judge

omitted to consider the categorical statements made by DW

3 and DW 4 that the testator had read out and signed the will

in their presence and thereafter they had appended their

signatures.

46. The other reasons enumerated by the learned Single

Judge for holding that the execution of will was highly

suspicious are based on mere surmises/conjectures. The

observation of the learned Single Judge that the possibility of

obtaining signatures of Shri Harishankar and attesting

witnesses on blank paper and preparation of the draft by Shri

S.K. Agarwal, Advocate on pre-signed papers does not find

even a semblance of support from the pleadings and

evidence of the parties. If Respondent 1 wanted to show that

the will was drafted by the advocate after Shri Harishankar

and attesting witnesses had signed blank papers, he could

have examined or at least summoned Shri S.K. Agarwal,

Advocate, who had represented him before the Board of

Revenue. …..”

24.7. Another decision cited on behalf of the appellant in the case of

Leela Rajagopal may also be referred where this Court summarised the

principles that ultimately, the judicial verdict in relation to a Will and

suspicious circumstances shall be on the basis of holistic view of the matter

with consideration of all the unusual features and suspicious circumstances

put together and not on the impact of any single feature. This Court said,-

“13. A will may have certain features and may have been

executed in certain circumstances which may appear to be

somewhat unnatural. Such unusual features appearing in a

will or the unnatural circumstances surrounding its execution

will definitely justify a close scrutiny before the same can be

accepted. It is the overall assessment of the court on the

basis of such scrutiny; the cumulative effect of the unusual

features and circumstances which would weigh with the court

in the determination required to be made by it. The judicial

verdict, in the last resort, will be on the basis of a

consideration of all the unusual features and suspicious

circumstances put together and not on the impact of any

single feature that may be found in a will or a singular

circumstance that may appear from the process leading to its

execution or registration. This, is the essence of the repeated

pronouncements made by this Court on the subject including

the decisions referred to and relied upon before us.”

24.8. We need not multiply the references to all and other decisions cited

at the Bar, which essentially proceed on the aforesaid principles while

applying the same in the given set of facts and circumstances. Suffice

would be to point out that in a recent decision in Civil Appeal No. 6076 of

2009: Shivakumar & Ors. v. Sharanabasppa & Ors., decided on

24.04.2020, this Court, after traversing through the relevant decisions, has

summarised the principles governing the adjudicatory process concerning

proof of a Will as follows:–

“1. Ordinarily, a Will has to be proved like any other document;

the test to be applied being the usual test of the satisfaction of

the prudent mind. Alike the principles governing the proof of

other documents, in the case of Will too, the proof with

mathematical accuracy is not to be insisted upon.

2. Since as per Section 63 of the Succession Act, a Will is

required to be attested, it cannot be used as evidence until at

least one attesting witness has been called for the purpose of

proving its execution, if there be an attesting witness alive and

capable of giving evidence.

3. The unique feature of a Will is that it speaks from the death

of the testator and, therefore, the maker thereof is not

available for deposing about the circumstances in which the

same was executed. This introduces an element of solemnity

in the decision of the question as to whether the document

propounded is the last Will of the testator. The initial onus,

naturally, lies on the propounder but the same can be taken to

have been primarily discharged on proof of the essential facts

which go into the making of a Will.

4. The case in which the execution of the Will is surrounded by

suspicious circumstances stands on a different footing. The

presence of suspicious circumstances makes the onus

heavier on the propounder and, therefore, in cases where the

circumstances attendant upon the execution of the document

give rise to suspicion, the propounder must remove all

legitimate suspicions before the document can be accepted as

the last Will of the testator.

5. If a person challenging the Will alleges fabrication or alleges

fraud, undue influence, coercion et cetera in regard to the

execution of the Will, such pleas have to be proved by him,

but even in the absence of such pleas, the very circumstances

surrounding the execution of the Will may give rise to the

doubt or as to whether the Will had indeed been executed by

the testator and/or as to whether the testator was acting of his

own free will. In such eventuality, it is again a part of the initial

onus of the propounder to remove all reasonable doubts in the

matter.

6. A circumstance is “suspicious” when it is not normal or is

‘not normally expected in a normal situation or is not expected

of a normal person’. As put by this Court, the suspicious

features must be ‘real, germane and valid’ and not merely the

‘fantasy of the doubting mind.’

7. As to whether any particular feature or a set of features

qualify as “suspicious” would depend on the facts and

circumstances of each case. A shaky or doubtful signature; a

feeble or uncertain mind of the testator; an unfair disposition of

property; an unjust exclusion of the legal heirs and particularly

the dependants; an active or leading part in making of the Will

by the beneficiary thereunder et cetera are some of the

circumstances which may give rise to suspicion. The

circumstances above-noted are only illustrative and by no

means exhaustive because there could be any circumstance

or set of circumstances which may give rise to legitimate

suspicion about the execution of the Will. On the other hand,

any of the circumstance qualifying as being suspicious could

be legitimately explained by the propounder. However, such

suspicion or suspicions cannot be removed by mere proof of

sound and disposing state of mind of the testator and his

signature coupled with the proof of attestation.

8. The test of satisfaction of the judicial conscience comes into

operation when a document propounded as the Will of the

testator is surrounded by suspicious circumstance/s. While

applying such test, the Court would address itself to the

solemn questions as to whether the testator had signed the

Will while being aware of its contents and after understanding

the nature and effect of the dispositions in the Will?

9. In the ultimate analysis, where the execution of a Will is

shrouded in suspicion, it is a matter essentially of the judicial

conscience of the Court and the party which sets up the Will

has to offer cogent and convincing explanation of the

suspicious circumstances surrounding the Will.”

CONTEST OF THE MATTER BY RESPONDENT NO.1

25. Having taken note of the principles which shall be the guiding factor

in dealing with the main questions posed in this matter, we may examine

the rival contentions. Before entering into the contentions relating to the

suspicious circumstances concerning the Will in question, it would be

appropriate to deal with and dispose of a preliminary objection of the

learned counsel for the appellant as regards contest of the matter by

respondent No.1. As noticed, it has been submitted with reference to

Section 268 of the Succession Act, Order VIII Rule 10, Order XIV Rule 1(6)

and Order XV Rule 2 CPC and the case of Bachhaj Nahar (supra) that the

status of respondent No.1 remains that of a defendant who has not filed the

written statement and who is not at issue; and hence, the contentions urged

on her behalf need no consideration and the evidence led by her remains

inadmissible. The submissions have been countered with reference to the

principles in H. Venkatachala Iyengar and Rani Purnima Debi (supra) as

also with reference to Order VIII Rule 5(2), Order VIII Rule 10 CPC and the

decision in Balraj Taneja (supra). It is submitted that ultimately, the Probate

Court is a Court of conscience and the respondent No.1, being the elder

daughter of the testatrix, has every right to make submissions concerning

the Will in question. In our view, the submission made on behalf of the

appellant seeking exclusion of respondent No.1 remains totally baseless

and could only be rejected.

25.1. The objection on behalf of the appellant does not stand in conformity

with the law declared in H. Venkatachala Iyengar and Rani Purnima Debi

(supra) and scores of other decisions where this Court has consistently held

that the probate proceeding is ultimately a matter of conscience of the

Court; and irrespective of whether any plea in opposition is taken or not, a

propounder of Will is required to satisfy the conscience of the Court with

removal of all the suspicious circumstances. By the very nature and

consequence of this proceeding, filing or non-filing of written statement or

objections by any party pales into insignificance and is of no effect. The

probate proceeding is not merely inter-partes proceeding but leads to

judgment in rem and, therefore, even when no one contests, it does not

ipso facto lead to grant of probate. The probate is granted only on proof of

Will as also on removal of suspicious circumstances, if there be any, to the

final satisfaction of the conscience of the Court.

25.2. In view of the above, reference to the provisions of Order VIII Rule

10, Order XIV Rule 1(6) and Order XV Rule 27 remains inapposite in

relation to the proceeding before a Probate Court. We may hasten to

observe that even in a regular civil suit, merely for want of written statement

by a defendant, it is not necessary that a judgment would always follow in

favour of the plaintiff without proof of the basic facts and without making out

a clear case of right to relief. Similarly, the decision in the case of Bachhaj

Nahar (supra) that relief cannot be granted in any Court without requisite

pleadings has hardly any application to the question at hand.

7 The referred provisions of CPC read as under:-

Order VIII Rule 10:

“10.Procedure when party fails to present written statement called for by

Court.-Where any party from whom a written statement is required under rule 1 or rule 9

fails to present the same within the time permitted or fixed by the Court, as the case may

be, the Court shall pronounce judgment against him, or make such order in relation to the

suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn

up.”

Order XIV Rule 1(6):

“1. Framing of issues.-

*** *** ***

(6) Nothing in this rule requires the Court to frame and record issues where the

defendant at the first hearing of the suit makes no defence.”

Order XV Rule 2(1):

“2. One of several defendants not at issue.- (1) Where there are more defendants

than one, and any one of the defendants is not at issue with the plaintiff on any question

of law or of fact, the Court may at once pronounce judgment for or against such

defendants and the suit shall proceed only against the other defendants.

*** *** ***”

25.3. In the case of Balraj Taneja (supra), this Court examined the

provisions contained in sub-rule (2) of Rule 5 of Order XVIII of CPC8 and

said that,-

“11. Sub-rule (2) provides that if the defendant has not filed

his written statement, it would be lawful for the court to

pronounce judgment on the basis of the facts contained in

the plaint. The rule further proceeds to say that

notwithstanding that the facts stated in the plaint are treated

as admitted, the court, though it can lawfully pass the

judgment, may before passing the judgment require such fact

to be proved….”

Apart from the above, even as regards Rule 10 of Order XVIII, this

Court said,-

“27. In view of the above, it is clear that the court, at no

stage, can act blindly or mechanically. While enabling the

court to pronounce judgment in a situation where no written

statement is filed by the defendant, the court has also been

given the discretion to pass such order as it may think fit as

an alternative. This is also the position under Order 8 Rule 10

CPC where the court can either pronounce judgment against

the defendant or pass such order as it may think fit.”

25.4. We need not multiply the authorities and discussion in this regard.

Suffice it to say that even in a regular civil suit, mere non-filing of written

statement by the defendant does not always lead to a judgment in favour of

the plaintiff. Noteworthy it is that regular civil suit usually leads to a

judgment inter-partes and not in rem. Even then, the requirement of proof

is not obviated. When the proceeding is solemn in nature like that for

8 The referred provisions of CPC read as under:

Order VIII Rule 5(2)

“5. Specific denial.-

*** *** ***

(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to

pronounce judgment on the basis of the facts contained in the plaint, except as against a

person under a disability, but the Court may, in its discretion, require any such fact to be

proved.

*** *** ***”

probate, which leads to judgment in rem, it is beyond the cavil that mere

non-filing of caveat or opposition is not decisive of the matter. The

propounder, in every matter for grant of probate, irrespective of opposition

or even admission by any party, is required to satisfy the conscience of the

Court, with removal of suspicious circumstances, if any.

25.5. Apart from the aforementioned general principles, it is also

significant to notice in the present case that the respondent No.1 is none

other but the elder widowed daughter of testatrix regarding whom, some

semblance of right, via the construction to be carried out by the appellant, is

proposed in the Will in question. Looking to her status as elder widowed

daughter of the testatrix and looking to the stipulation in the Will in question,

it is evident that even without filing any written statement, the respondent

No.1 is entitled to show that the purported grant of some right to her is

illusory or is, in fact, no grant at all; and that her mother would not have put

her in such an insecure position as would be the result of the Will. As a

necessary corollary, her right to demonstrate the suspicious circumstances

is inherent in the very process envisaged for the Probate Court. This is

apart from the fact that the respondent No.1 has indeed examined herself

as a witness without objection by the appellant.

25.6. Thus, the objection against contest by the respondent No.1, as

raised on behalf of the appellant, deserves to be, and is hereby rejected.

SUSPICIOUS CIRCUMSTANCES CONCERNING THE WILL IN QUESTION

26. While examining the relevant factual aspects and circumstances of

this case on the anvil of the principles aforesaid, we may usefully observe

that in the case of Leela Rajagopal (supra), this Court found justified the

concurrent findings on due execution of Will and, in the context of facts,

participation of the beneficiary in execution of the Will and his acquaintance

with one of the attesting witness were found to be reasonably explained.

However, significantly, in the said case, this Court also cautioned against

repeated reappreciation of evidence, particularly in the appeal lodged only

by way of special leave, in the following words:-

“17. Before parting we would like to observe that the very fact

that an appeal to this Court can be lodged only upon grant of

special leave to appeal would indicate the highly

circumscribed nature of the jurisdiction of this Court. In

contrast to a statutory appeal, an appeal lodged upon grant

of special leave pursuant to a provision of the Constitution

would call for highly economic exercise of the power which

though wide to strike at injustice wherever it occurs must

display highly judicious application thereof. Determination of

facts made by the High Court sitting as a first appellate

court or even while concurring as a second appellate

court would not be reopened unless the same gives rise

to questions of law that require a serious debate or

discloses wholly unacceptable conclusions of fact which

plainly demonstrate a travesty of justice. Appreciation or

reappreciation of evidence must come to a halt at some

stage of the judicial proceedings and cannot percolate to the

constitutional court exercising jurisdiction under Article 136.”

(emphasis supplied)

26.1. In the present case too, the Trial Court has returned the findings

against the appellant after due appreciation of evidence and the High Court

has affirmed such findings after independent and thorough examination of

evidence. There appears hardly any scope for disturbing such concurrent

findings by entering into the process of reappreciation of entire evidence

yet, in view of the submissions made and in the interest of justice, we have

gone through the material on record to find if there be any such perversity

which might result in serious miscarriage of justice. We find none.

27. As noticed, there has not been any question on the testamentary

capacity and soundness of mind of the testatrix; and her handwriting as

also signatures on the Will in question are also beyond controversy.

However, the Trial Court and the High Court have concurrently found some

such suspicious circumstances which are of material bearing and which

have remained unexplained. Put in a nutshell, the unexplained suspicious

circumstances so found are: (a) that appellant, the major beneficiary, played

an active role in execution of the Will in question and attempted to conceal

this fact before the Court; (b) that there had not been any plausible reason

for non-inclusion of the only son and other daughter of the testatrix in the

process of execution of the Will and for excluding them from the major part

of the estate in question; (c) that there was no clarity about the construction

supposed to be carried out by the appellant; (d) that the manner of writing

and execution of the Will with technical and legal words was highly doubtful;

and (e) that the attesting witnesses were unreliable and there were

contradictions in the statements of the witnesses. Because of these major

circumstances coupled with various supplemental factors, the Trial Court

and the High Court felt dissatisfied on the root question as to whether the

testatrix duly executed the Will in question after understanding its contents.

28. There is no doubt that any of the factors taken into account by the

Trial Court and the High Court, by itself and standing alone, cannot operate

against the validity of the propounded Will. That is to say that, the Will in

question cannot be viewed with suspicion only because the appellant had

played an active role in execution thereof though she is the major

beneficiary; or only because the respondents were not included in the

process of execution of the Will; or only because of unequal distribution of

assets; or only because there is want of clarity about the construction to be

carried out by the appellant; or only because one of the attesting witnesses

being acquaintance of the appellant; or only because there is no evidence

as to who drafted the printed part of the Will and the note for writing the

opening and concluding passages by the testatrix in her own hand; or only

because there is some discrepancy in the oral evidence led by the

appellant; or only because of any other factor taken into account by the

Courts or relied upon by the respondents. The relevant consideration would

be about the quality and nature of each of these factors and then, the

cumulative effect and impact of all of them upon making of the Will with free

agency of the testatrix. In other words, an individual factor may not be

decisive but, if after taking all the factors together, conscience of the Court

is not satisfied that the Will in question truly represents the last wish and

propositions of the testator, the Will cannot get the approval of the Court;

and, other way round, if on a holistic view of the matter, the Court feels

satisfied that the document propounded as Will indeed signifies the last free

wish and desire of the testator and is duly executed in accordance with law,

the Will shall not be disapproved merely for one doubtful circumstance here

or another factor there.

29. Keeping the applicable principles in view, we may examine the

factors and circumstances which are suspicious in character and their

overall impact on the document in question.

29.1. While entering into the facts and circumstances related with the Will,

profitable it would be to recapitulate the background and the set up in which

the contested Will is said to have been executed. The immovable property

in question at No. D-179, Defence Colony, New Delhi was originally of the

ownership of father of the contesting parties, husband of testatrix. The

ground floor of this property was given in gift to the appellant on

25.01.2001, whereas the first floor and the other portion/s came to the

testatrix by way of the Will of her husband dated 14.02.2001. The husband

of testatrix expired on 20.10.2002. The appellant, married daughter of the

testatrix, was admittedly living in a different locality, that is, at Panchshila

Park for 20-22 years, whereas son of the testatrix, who was serving in Army,

remained posted outside and was lastly residing in Shimla. The testatrix

was a cancer patient and was under regular treatment in an Army Hospital

at Delhi. Significantly, the testatrix was residing at the said ground floor

portion of the building in question (which had already become property of

the appellant by virtue of the gift by her father). The respondent No.1, the

widowed daughter of the testatrix, was residing at the first floor of the same

building with her own daughter. Admittedly, the said first floor of the house

was the property of testatrix by virtue of the Will of her husband. It is not a

matter of much dispute that respondent No.1, while living in the same

building, was taking care of the testatrix and was even taking her to Army

Hospital for treatment.

29.2. In the given set-up, a basic question immediately crops up as to