AI Structured Summary
Not yet generated for this judgment
Judgment
The present appeal under Section 299 of the Indian Succession Act, 1925 (hereinafter the “ISA”) has been preferred assailing the judgment dated 20.11.2007 passed by the learned Additional District Judge, Delhi, in PC No. 231/2006.
Vide the impugned judgment, the Probate Court dismissed the petition filed by the appellant under Section 276 of the ISA seeking probate of a registered Will dated 16.04.2003 (hereinafter the “Will”) stated to have been executed by late Smt. Chhanno Devi @ Chhan Kaur (hereinafter the “testatrix”).
For convenience, the respondents are hereinafter referred to by their status before this Court.
The testatrix was the widow of late Sh. Jot Ram, who had predeceased her on 28.01.1988. The couple had no children. After the death of her husband, the testatrix was brought on record as his legal heir in the land acquisition proceedings concerning his lands at Village Palam and Mirzapur, Delhi. She passed away on 20.12.2004. The subject matter of the probate petition was the compensation amount of Rs.7,39,558/- relating to the said lands.
The appellant, son of Sh. Suraj Mal, claims to be the nephew of the testatrix, being the son of her brother. The respondents were impleaded before the Probate Court as the legal heirs of the brothers of late Sh. Jot Ram.
The appellant filed the underlying petition on the strength of the Will, which is registered with the Sub-Registrar-II, West District, Delhi, and by which the testatrix is stated to have bequeathed all her properties to the appellant and appointed him as the sole executor. The Will is typed in English, bears the thumb impressions of the testatrix, and names Sh. Naresh Kumar and Sh. Vijay Kumar as its attesting witnesses. The appellant had claimed that he was brought up by the testatrix and her husband since his childhood. He had looked after the testatrix till her death, and had performed her last rites.
The citation was published in Dainik Jagran, and no objection was received from the general public. Respondent no. 1 appeared in person on 13.03.2006 and gave his no objection to the grant of probate, as did respondent nos. 12 to 15. Objections were filed by respondent no. 11/Sh. Chander Bhan, and separately by respondent nos. 2 to 10. The objectors alleged that the Will was forged and fabricated and was the result of a fraud played by the appellant upon the testatrix. They stated that the testatrix did not know English; that the contents of the Will were never explained to her; that she was not of sound disposing mind; that the attesting witnesses did not attest the Will in her presence; and that some other lady had been produced before the Sub-Registrar. It was further stated that the testatrix had died at H. No. WZ-58, Palam Village, New Delhi, where the objectors had performed her last rites, and that respondent no. 11 had already filed a suit seeking cancellation of the Will.
On 21.09.2006, the Probate Court framed the following issues:
“1.Whether the Will dated 16.04.2003, propounded by the petitioner is the duly executed last and final Will of late Smt. Chhanno Devi in good health and sound disposing state of mind? OPP.
2.Relief.”
The appellant examined himself as PW-1; Sh. Niranjan Singh, a clerk from Syndicate Bank, as PW-2; and Sh. Vijay Kumar, one of the two attesting witnesses, as PW-3. It is pertinent to note that the order dated 02.11.2006 passed by the Probate Court records that both the attesting witnesses were present in Court that day, and the learned counsel for the appellant sought an adjournment to file their affidavits. Only the affidavit of Sh. Vijay Kumar was eventually filed, and on 14.02.2007 the appellant closed his evidence without examining Sh. Naresh Kumar. On behalf of the objectors, respondent no. 11 examined himself as OW-1 and Sh. Kamal Sharma, a resident of Palam Village, as OW-2.
By way of the impugned judgment, the Probate Court held that the evidence affidavit of PW-3 (Ex. P-2) carried no evidentiary value since PW-3 had admitted that it was brought to his residence by the appellant, that he had not appeared before the Oath Commissioner, and that he was unaware of its contents. It was further held that PW-3 had admitted that Sh. Naresh Kumar had not signed the Will in his presence, and that there was no evidence as to when Sh. Naresh Kumar had signed it, so the attestation required by Section 63(c) of the ISA was not proved. The Probate Court also noted that while the appellant claimed ignorance of the execution of the Will, PW-3 deposed that the appellant had brought the testatrix to Janakpuri and had brought PW-3 there to sign as a witness on sale purchase documents. Finding that the appellant had played a dominant role in the execution of the Will and had not explained the suspicious circumstances surrounding it, the Probate Court dismissed the petition.
Learned counsel for the appellant contends that the Will stands proved by PW-3, an attesting witness present at the time of its execution as well as registration, and that the examination of one attesting witness satisfies Section 68 of the Indian Evidence Act, 1872 (hereinafter the “Evidence Act”). It is contended that a registered Will carries a presumption of its due execution. He further contends that the Probate Court ought to have put questions to PW-3 or permitted the register of the Oath Commissioner to be summoned instead of discarding the evidence affidavit of PW-3. Learned counsel also contends that even if the testatrix had been told that she was executing a sale purchase document, such a document would equally have transferred her property to the appellant, which shows that she meant to pass it to him. Lastly, it is contended that the documents on record show that the testatrix lived with the appellant and was looked after by him, which furnished a natural reason for the bequest.
Per contra, learned counsel for respondent nos. 5 to 11 submits that PW-3 disowned his evidence affidavit and admitted that the other attesting witness had not signed in his presence, while that witness, Sh. Naresh Kumar, though available, was never examined. He further submits that the testatrix was illiterate and did not know English, and that the appellant, who is the sole beneficiary, brought her and PW-3 for the execution of the Will while professing ignorance of it.
I have heard the learned counsels for the parties and gone through the record.
Section 63(c) of the ISA requires a Will to be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark to the Will, or received his personal acknowledgment of it, and each of whom must sign the Will in the presence of the testator. Section 68 of the Evidence Act permits the propounder to prove such a document by examining only one attesting witness, if one is alive and capable of giving evidence. The proviso to Section 68 makes it clear that, unlike other registered documents, a registered Will is not exempt from this mode of proof. However, the one witness examined must then be able to prove the attestation by both. This was explained by the Supreme Court in Janki Narayan Bhoir Vs. Narayan Namdeo Kadam1 in the following terms:
“10.… But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.
11.… Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. …”
The law on proof of a Will, and on the propounder’s burden where suspicious circumstances exist, was laid down by the Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma2. The relevant portion reads as under:
“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.” (emphasis supplied)
Thus, the onus to prove the Will lies on the propounder. Further, where the propounder has played a prominent part in its execution and takes a substantial benefit under it, he must remove that suspicion by clear and satisfactory evidence before the Court can accept the Will.
It is in this backdrop that the evidence is to be examined. The Will names two attesting witnesses, out of whom only one i.e., PW-3 was examined. In his evidence affidavit (Ex. P-2), PW-3 stated that the testatrix was known to him, that she put her thumb impression in his presence, that he thereafter attested the Will, and that the other witness also signed in his presence. However, in his cross-examination, PW-3 deposed as under:
“I educated upto 10th Class. It is correct that I cannot understand the language of English, but I can read only. I am Electrician and working in a shop. I signed on affidavit in evidence Ex.P2 at my residence. The affidavit Ex.P2 had been brought at my residence for my signatures by Shri Jagbir Singh. It is also correct that I did not appear before any Oath Commissioner, who had attested my said affidavit Ex.P2. It is also correct that I am not aware as to what has been written in my said affidavit Ex.P2. Shri Jagbir Singh is my friend. … I signed at point B and B1 on Ex.PW1/5 at Janakpuri. When I signed on Ex.PW1/5 there was one Naresh Kumar and one Shri Jagbir Singh. I did sign on the said Ex.PW1/5 in presence of Naresh Kumar. It is correct that Shri Naresh Kumar had not signed in my presence on Ex.PW1/5. I did not know Smt. Channo Devi personally, but she is Bua of Shri Jagbir Singh. Smt. Channo Devi also went to Janakpuri. … Smt. Channo Devi was brought by Shri Jagbir at Janakpuri. It is correct that Smt. Channo Devi had put thumb impression in my presence on Ex.PW1/5. I am not aware as to on what document I signed at Janakpuri. It is also correct that I am not aware what is Ex.PW1/5. Shri Jagbir Singh had brought me at Janakpuri to sign as witness on sale purchase documents. It is correct that I was not made to understand the contents of Ex.PW1/5 before and at the time I signed on Ex.PW1/5. …”
The above testimony leaves little of Ex. P-2. PW-3 did not appear before the Oath Commissioner. He did not even know what the affidavit contained which was handed over to him for signature by the appellant himself. Even the statement in the affidavit that the testatrix was known to him stands belied by his admission that he did not know her personally. The grievance that no opportunity was given to summon the register of the Oath Commissioner is of no avail, since the appellant never sought to summon it before the Probate Court, nor has any such request been made before this Court. More importantly, the register could not have cured the admission of the deponent himself that he was unaware of what he had signed. I therefore find no infirmity in the view of the Probate Court that Ex. P-2 could not be relied upon.
Even if the cross-examination is read on its own, it does not prove attestation in terms of Section 63(c) of the ISA. PW-3 stated that the testatrix put her thumb impression in his presence, but he did not state that he signed the Will in her presence. He only said that he signed in the presence of Sh. Naresh Kumar. As regards the second attesting witness, PW-3 admitted that Sh. Naresh Kumar did not sign the Will in his presence. There is not a word in the evidence to show that Sh. Naresh Kumar saw the testatrix affix her thumb impression or that he signed in her presence. The attestation by the second witness thus remains wholly unproved.
In such a situation, Janki Narayan Bhoir (supra) required the appellant to call Sh. Naresh Kumar to make the proof complete. Sh. Naresh Kumar was very much alive and available. He had signed the declaration of witnesses appended to the probate petition itself, and the order dated 02.11.2006 records his presence in Court. Yet the appellant chose to close his evidence without examining him, and no explanation for this has been offered either before the Probate Court or before this Court. The appellant, therefore, cannot fall back on Section 71 of the Evidence Act.
The contention that the registration of the Will raises a presumption of due execution is equally misplaced. As noted above, the proviso to Section 68 of the Evidence Act does not exempt a registered Will from proof through an attesting witness. Registration may lend some assurance that the executant appeared before the Sub-Registrar, but it does not prove attestation in terms of Section 63(c) of the ISA. A gainful reference in this regard may be made to the decision of the Supreme Court in Raj Kumari Vs. Surinder Pal Sharma3, where the High Court had treated a registered Will as proved under Section 71 of the Evidence Act even though none of the attesting witnesses were examined. Setting that finding aside, the Supreme Court held as under:
“25.… The High Court has accordingly held that the will being registered was proved in terms of Section 71 of the Evidence Act. This finding of the High Court is unacceptable, for recourse to Section 71 of the Evidence Act is impermissible without examination of Ramesh Kumar. It would not matter if Ramesh Kumar is husband of Raj Kumari. Section 71 of the Evidence Act would come into operation, once and if all the attesting witnesses deny or do not recollect the execution of the document, that is, the will. In that event, the execution can be proved by other evidence. …”
In the present case, Sh. Naresh Kumar was available but not examined. Nobody from the office of the Sub-Registrar was examined either, and there is no evidence as to what transpired at the time of registration.
The onus to prove the Will lay on the appellant. The power of the Court under Section 165 of the Evidence Act to put questions to a witness is discretionary, and it is not the function of the Court to fill the gaps in the evidence of the propounder.
Quite apart from the failure to prove attestation, the record discloses suspicious circumstances surrounding the Will which the appellant has left unexplained. In his cross-examination, the appellant himself deposed as under:
“… Smt. Channo Devi was illiterate. It is correct that she did not know any language She could not write and read any language. She could only speak Villagers’ language. … It is correct that the Will Ex.PW1/5 is written in English language and Smt. Channo, the testatrix could not read, write and understand the English language. I am not aware about the execution of the Will. I am also not aware as to whether the witnesses Naresh Kumar and Vijay had signed in presence of testatrix or that the testatrix had signed in presence of the witnesses. I am also not aware as to whether the testatrix and witnesses were made to understand the contents of the Will Ex.PW1/5. I came to know about Ex.PW1/5 later on while searching the documents. …”
Thus, as per the appellant’s own evidence, the testatrix could neither read nor understand the language in which the Will is written. It is not known who drafted the Will, and no scribe has been examined. There is no evidence that its contents were ever read over or explained to the testatrix in a language she understood. The only attesting witness examined, though educated up to the 10th class, could not himself understand English, was not made to understand the contents of the document, and believed that he was signing a sale purchase document.
Further, the appellant, in his evidence affidavit, does not state that he was present when the Will was executed, and in his cross-examination professes complete ignorance of its execution. However, his own witness (PW-3) deposed that the appellant brought the testatrix to Janakpuri, brought the witness there to sign, and was present when the witness signed. The appellant is the sole beneficiary under the Will. His active part in its execution, coupled with his attempt to distance himself from it, is precisely the kind of suspicious circumstance contemplated in H. Venkatachala Iyengar (supra), and no evidence has been led to dispel it.
A similar situation arose in Kavita Kanwar Vs. Pamela Mehta4, where the beneficiary professed ignorance of the making of the Will but was contradicted by one of the attesting witnesses. The Supreme Court observed as under:
“29.4.Apart from the above, active participation of the appellant in making of the will in question cannot be left aside as one of the minor factors for the reason that the appellant indeed attempted to project a face of innocence by suggesting that the testatrix did not discuss the will with her; that she was not aware as to who drafted the will and where was it typed; and that she came to know about the will only on 20-5-2003/21-5-2003. The appellant even stated that she did not call the witnesses and that the testatrix herself might have called them. The witness, PW 2 has clearly contradicted the appellant by deposing that on 18-5-2003, it was the appellant who invited him to her mother’s place. Thus, the appellant, by her conduct of attempting to avoid the fact that she was aware of making of will, at least two days before its execution, has only strengthened the suspicion arising because of her active participation in execution of the will while keeping the other children of the testatrix excluded from the process.”
In these circumstances, the observation of the Probate Court that the thumb impression of the testatrix may have been obtained without her understanding the nature of the document cannot be faulted. The argument that even a sale document would have been in favour of the appellant does not take his case any further, since what had to be proved was that the testatrix knowingly executed a Will with her free will.
Learned counsel for the appellant has placed reliance on the documents showing that the appellant resided with the testatrix and looked after her. Even respondent no. 11 admitted in his cross-examination that the testatrix was the Bua (paternal aunt) of the appellant and that the appellant had resided with her since he was about 6-7 years old. These circumstances may show that a bequest in favour of the appellant would not have been unnatural. However, the naturalness of a disposition cannot take the place of proof of due execution and attestation. Once the propounder fails to prove the Will in the manner required by law, the question of the disposition being natural does not arise.
Lastly, it is noticed that some of the respondents gave their no objection to the grant of probate before the Probate Court. Further, during the pendency of the present appeal, the legal heirs of late Sh. Satish Kumar and late Sh. Satbir, who were impleaded vide order dated 20.09.2023, have also stated that they have no objection to the grant of probate. This does not dispense with the requirement of proof. A grant of probate operates as a judgment in rem, and the Court must itself be satisfied that the Will has been proved. In Kavita Kanwar (supra), the Supreme Court held as under:
“25.1.… 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.”
In any event, the present appeal remains contested.
In view of the above, in the considered opinion of this Court, the appellant has failed to prove the due execution and attestation of the Will as required under Section 63 of the ISA read with Section 68 of the Evidence Act, and has also failed to dispel the suspicious circumstances surrounding it. I find no infirmity in the impugned judgment.
The present appeal is accordingly dismissed.