Chandra Dhari Singh, J
I.A. 10673/2020 (Under Order XI Rule 12 and 14)
1. The instant application has been filed by the Applicant seeking issuance of directions to Petitioner/PW1, PW2, LR No. 1 and LR No.4 to discover and produce copies of all Income Tax Returns with Balance Sheets filed in the income Tax Department of Late Mr. Davinder Kumar Jain for the period 01.04.2003 to 18.03.2014.
2. The probate petition has been filed under Section 276 of the Indian Succession Act, 1925 with regard to the Will dated 11th December, 2004 executed by late Mr. Davinder Kumar Jain, son of late Mr. Satpal Jain, resident of D-19, Nizamuddin (East), New Delhi-110013. The Applicant is daughter and Legal Heir No. 5 of the deceased testator and has filed her objections to the petition on the ground that the purported Will is false, bogus and forged, and it has been fabricated to vest the entire estate in favour of Mrs. Usha Jain, wife of the deceased and to oust all other legal heirs of the deceased.
3. Mr. Harish Malhotra, Sr. Advocate, appearing for the Applicant submitted that the deceased testator owned several shares in his own name in various companies as furnished in paragraph 4 of the instant Application. Mrs. Usha Jain, L.R. No.1 has illegally and without the permission of this Court and consent of L.R. No.5/Applicant has got the aforesaid shares transferred in her favour. The said transmission is bad in law and as such liable to be set aside. Unfortunately, Mr. Sanjay Kalra, Petitioner/Executor has taken no action in preserving the aforesaid shares of late Mr. D.K. Jain. It is respectfully submitted that after the death of Mr. D.K. Jain on 18th March, 2014 the right, title and interest in all the said shares stood inherited immediately in favour of all the aforesaid five legal heirs of late Mr. D.K. Jain.
4. It is further submitted that the deceased also owned another set of shares in the different companies as enumerated in paragraph 5 of the Application and the same have not been transmitted in the name of Mrs. Usha Jain, LR. No.1. It is stated that in all the shares and dividends left behind by the deceased, Ms. Priya Jain, LR. No.5/Applicant has inherited 20% right, title and interest in the same. It is alleged that Sh. Sanjay Kalra PW-1/Petitioner and Sh. Mahesh Gupta/PW-2 were looking after the financial affairs of late Sh. D.K. Jain during his life time. It is stated that Sh. Mahesh Gupta/PW-2, claims himself to be a director and Vice President of some companies of Luxor Group. Income Tax Returns with balance sheet of late Mr. D.K. Jain, father of the applicant were being filed with the Income Tax Department through Sh. Sanjay Kalra and/or by Sh. Mahesh Gupta.
5. It is further stated that after the death of Mr. D.K. Jain, all his assets and papers/documents are in the physical custody of his wife, Mrs. Usha Jain and his daughter, Ms. Pooja Jain including his Income Tax Returns with balance sheets Sh. Sanjay Kalra PW-1/Petitioner and Sh. Mahesh Gupta (PW2) beign the CAs of the deceased, have in their possession, custody and power, copies of all the Income Tax Returns with balance sheets filed with the Income Tax Department from time to time, including for the financial years w.e.f. 1st April, 2003 to 18th March, 2014 being his Chartered Accountants and looking after his financial affairs. The said Income Tax Returns with balance sheets shall show all the properties owned by late Mr. D.K. Jain as on 11th December, 2004 (date of the alleged Will) and 18th March, 2014 (date of his death) along with other details during the above period.
6. In view of the aforesaid, it is submitted that the present petition relates to the properties owned by late Mr. D.K. Jain as on 11th December, 2004 (date of the alleged Will) and 18th March, 2014 (date of his death). Consequently, the aforesaid Income Tax Returns with balance sheets of late Mr. D.K. Jain for the financial years during the aforesaid period are relevant and necessary for fairly disposing the testamentary case.
7. Per contra, Mr. Darpan Wadhwa, learned senior counsel appearing for LRs No. 1 and 4 vehemently opposed the averments made in the instant application as well as the arguments advanced by the learned senior counsel for the Applicant. It is submitted that the instant Application is nothing but an abuse of process and a tactic to delay the proceedings.
8. It is therefore submitted that instant Application being devoid of merits should be dismissed by this Court.
9. Heard learned counsel for the parties and perused the record.
10. For a better appreciation of the case at hand, before delving deeper into the facts of the case, it is pertinent to peruse and analyse the provisions of law with respect to Wills in the instant petition to delineate the scope of jurisdiction of this Court in probate jurisdiction.
11. The Indian Succession Act, 1925 is the law governing Wills and matters relating thereto. Section 2(h) of the Indian Succession Act, 1925 defines Will, in the following terms:
“(h) “will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”
12. A bare perusal of the definition reveals that there are three essential characteristics of a Will, as delineated hereunder:
(i) there must be a legal declaration;
(ii) the declaration must be with respect to the property of the Testator; and
(iii) the declaration must be to the effect that it is to operate after the death of the Testator, i.e. it should be revocable during the life of the Testator.
13. As per the scheme of the Indian Succession Act, 1925, there are two types of Wills, namely – Privileged Wills and Unprivileged Wills. Privileged Wills have been provided for under Section 65 of the Act. It provided that any soldier being employed in an expedition or engaged in actual warfare, or an airmen so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a Will made in the manner provided in Section 86 of the said Act. All residual Wills, other than Privileged Wills, fall into the category of Unprivileged Wills.
14. Every person of sound mind, who is not a minor, may dispose of his property by Will. Section 59 of the Indian Succession Act, 1925 that deals with the capacity of a person to dispose of his property by way of a Will, reads as under:
“59. Person capable of making wills.—Every person of sound mind not being a minor may dispose of his property by will.
Explanation 1.—A married woman may dispose by will of any property which she could alienate by her own act during her life.
Explanation 2.—Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
Explanation 3.—A person who is ordinarily insane may make a will during interval in which he is of sound mind.
Explanation 4.—No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.”
15. A Will is rendered void in cases of it being polluted by the sin of fraud and other defects. The relevant provision being Section 61 of the Indian Succession Act, 1925 reads 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.”
16. Section 63 of the Indian Succession Act, 1925 deals with the execution of Unprivileged Wills and reads as under:
“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.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has 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 of 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.”
17. What emerges from a bare perusal of the aforementioned provision is that the Testator shall sign or affix his mark to the Will. Alternatively, it can be signed by some other person in his presence and by his direction. The signature or mark shall be placed in such a manner that it can be inferred that it was intended to give effect to the writing as a Will. Next comes the aspect of attestation by witnesses. The Will needs to be signed by two or more witnesses in the presence of the Testator, if they have seen the Testator or some other person sign or affix his mark. Only those persons are eligible to attest, who have received personal acknowledgment from the Testator, of his signature or mark, or of the signature of such other person.
18. Section 2(f) of the Indian Succession Act, 1925 defines Probate and reads as under:
“(f) “probate” means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator;”
19. Once the Probate is granted, it establishes the Will from the time of the death of the Testator and renders valid, all action of the executor during the interim period, i.e. from the time of the death of the Testator to the grant of Probate. Probate is conclusive evidence of the testamentary capacity of the Testator and due execution and validity of the Will. The finding of the Probate court as to the due execution of the Will is conclusive. The grant of Probate vests all the property in the person in whose favour the Probate is granted.
20. In the recent case of Murthy v. C. Saradambal, (2022) 3 SCC 209, the Hon’ble Supreme Court has summarised the law regarding Wills as under:
31. One of the celebrated decisions of this Court on proof of a will, in H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443] is in H. Venkatachala Iyengar v. B.N. Thimmajamma, wherein this Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under: (AIR p. 451, para 18)
“18. … 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. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 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 Sections 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, Sections 59 and 63 of the 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 Section 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.”
32. In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will.
33. In the abovenoted case, this Court has stated that the following three aspects must be proved by a propounder: (Bharpur Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p. 696, para 16)
“16. … (i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) 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 propounder, and
(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.”
34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369] , this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial 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 let in by the propounder of the will is such as would satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will.
35. In Bharpur Singh v. Shamsher Singh [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , this Court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner: (SCC p. 699, para 23)
“23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.”
36. It was further observed in Shamsher Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] that the circumstances narrated hereinbefore are not exhaustive. Subject to offering of a reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.”
37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433], in paras 34 to 37, this Court has observed as under: (SCC pp. 447-48)
“34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.
***
35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh [B. Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449] , wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.
36. The proof of a will is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it purports to be.
37 [Ed.: Para 37 corrected vide Official Corrigendum No. F.3/Ed.B.J./86/2007 dated 5-12-2007.] . We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion.”
21. The Hon’ble Supreme Court in Anil Kak v. Sharada Raje, (2008) 7 SCC 695, opined that the Court is required to adopt a rational approach while considering the question of grant of probate and is furthermore required to satisfy its conscience as existence of suspicious circumstances plays an important role.
22. Further, the Hon’ble Supreme Court in Leela Rajagopal v. Kamala Menon Cocharan, (2014) 15 SCC 570, opined as under:
“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.”
23. In view of the aforesaid, the scope of the jurisdiction of the probate Court is limited to the extent of adjudicating whether the Will set up by the propounder is proved to be the last valid will of the testator in respect of which a probate can be granted. Therefore, what is required to be tested is whether the testator had signed the will. Next, it is to be seen whether he understood the nature and effect of the dispositions in the will. Lastly but importantly, whether he put his signature to the will knowing what it contained. It is also a settled law that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act, 1925. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
24. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will. In a probate case, the burden of proof that is to be thus discharged by the petitioner is to establish beyond reasonable doubt that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and that he put his signature on the document of his own free will.
25. It is also a settled law that 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, the Court would be justified in making a finding in favour of propounder.
26. In cases where the Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. Therefore, the ultimate scrutiny of the evidence for removal of suspicion as to the circumstances is to be carried out on the anvil of the judicial conscience.
27. Having perused the provisions regarding the execution of an Unprivileged Will as well as the law applicable to the grant of probate in detail, it is now pertinent to apply the same to the facts and circumstances of the case at hand.
28. In the instant case, the said application has been filed with respect to discovery and furnishing of the Income Tax Returns with balance sheets between the period of 1st April 2003 and 18th March, 2014. There is no plausible reasoning offered to justify the correlation between the validity of the said will and that of the documents as prayed herein. In the facts and circumstances of the case, the Income Tax Returns of the said period shall serve no purpose in adjudicating the question of grant of probate of will. As already discussed, the scope of the jurisdiction of the probate Court is limited to the extent of adjudicating whether the Will set up by the propounder is proved to be the last valid will of the testator in respect of which a probate can be granted.
29. In any case, the application has been filed after a passage of 6 years of the filing of the instant petition. It is a well settled principle that delay defeats the rights of the cliamant - "Vigilantibus non dormientibus aequitas subvenit". Law assists the vigilant and not those who sleep on their rights. Unreasonable delay in bringing forth a claim or laches are a major hurdle in granting relief to the claimant, especially when the delay is substantial. Such an extraordinary delay in itself defeats the ends of justice. The pendency of the case cannot be a ground to make requests until the very fag end of the conclusion of the proceedings. No justification has been offered in filing the instant application after the proceedings have been continuing for past six years.
30. In view of the aforesaid, the instant application is nothing but an abuse of process and seems to be filed merely to delay and derail the proceedings in the testamentary case, and as such in the interest of justice the same cannot be allowed.
31. Therefore, the instant application being devoid of merits stands dismissed.
32. The judgment be uploaded on the website forthwith.
