Surjit Singh, J.@mdashPresent appeal is directed against the judgment, dated 22.4.1994, of the learned District Judge (Forests), Shimla, whereby Appellant''s petition, u/s 276 of the Indian Succession Act, for grant of probate, in respect of Will dated 30.9.1986, allegedly executed in her favour by her mother Smt. Amar Kaur, has been dismissed with the findings that the execution of the Will is shrouded by suspicious circumstances and the petition suffers from delay and latches.
2. Facts relevant for the disposal of the appeal, may be noticed Appellant, who is one of the five sons and daughters of late Smt. Amar Kaur, filed an application u/s 276 of the Indian Succession Act, seeking grant of probate in respect of Will, allegedly executed in her favour, by her mother Smt. Amar Kaur, whereby the entire estate of said Smt. Amar Kaur has been bequeathed to her (the Appellant). It was alleged in the application that the deceased executed a Will on 30th September, 1986, thereby bequeathing her property worth Rs. 15 lacs approximately, in favour of the Appellant. It was also alleged that Smt. Amar Kaur died on 15th January, 1987, and the Appellant being the sole executor of the Will, was entitled to the grant of probate. Four siblings of the Appellant, namely Kailash Chander Gupta and Surinder Pal Singh, her brothers and Smt. Sarabjit Kaur and Kiranjit Kaur, her sisters, were impleaded as Respondents, besides the general public.
3. Respondent Kailash Chander Gupta and Smt. Kiranjit Kaur, in their separate written replies, admitted the claim of the Appellant Smt. Sarabjit Kaur did not put in appearance and was, therefore, proceeded against ex parte.
4. It was only Surinder Pal Singh, impleaded as Respondent No. 3 in the said petition, who contested the petition filed by the Appellant. He raised a number of preliminary objections, besides contesting the Appellant''s claim on merits. It was alleged that the petition suffered from delay and latches, the Petitioner had not approached the Court with clean hands as she has suppressed the fact that a suit had already been filed by the Respondent No. 3 in the Court of Sub-Judge (3) in which the plea of bequest had been taken by the Petitioner, the Petitioner had not filed the original Will and the Petitioner was estopped to file the petition by her acts, deeds and conduct, inasmuch as all the sons and daughters, including the Appellant, had executed a writing soon after the death of Smt. Amar Kaur that the latter had not left any Will, which was available with one Jaspal Singh of Delhi, a Mama of the Appellant and the Respondents.
5. As regard the merits of the case, it was denied that any Will was executed by Smt. Amar Kaur. It was alleged that as a matter of fact, there was no Will and the estate of Smt. Amar Kaur had been mutated in favour of her legal heirs, in accordance with the rules of inheritance, vide order dated 1.3.1987 and the Appellant was in the know of the said order. It was alleged that it was after the attestation of the aforesaid mutation that the Appellant moved an application seeking mutation, on the strength of the Will, some time in March or April, 1987. Further, it was alleged that the Will that was submitted by the Appellant, to the Assistant Collector, consisted of two pages and a copy of that Will was procured by the Counsel, for the Respondent, but on the next date to which the proceedings were adjourned, it was noticed that the second leaf of the Will had been replaced. It was also alleged that the Respondent then approached the authorities for getting a case of forgery registered against the Appellant and when they did not concede his request, he approached the Hon''ble High Court, by filing a writ petition, which was disposed of with the observations that the Revenue Officers, while conducting mutation proceedings did not act as Courts and the Respondent was free to lodge report with the police directly. It was also alleged that during the life time of Smt. Amar Kaur, an attempt was made by the Appellant to get executed a Will from Smt. Amar Kaur and also to get the same registered with the Sub-Registrar and an application was also made to the then Sub-Registrar Shri S.R. Bhardwaj to register the Will, but when the Sub-Registrar visited Smt. Amar Kaur at her resident, she denied having executed any Will, in favour of the Appellant and so the Sub-Registrar did not register the purported Will of Smt. Amar Kaur. It was also alleged that the Appellant was possessed of several sheets of blank papers, bearing signatures of Smt. Amar Kaur and it appeared that she had fabricated the Will of Smt. Amar Kaur on one of such signed papers.
6. A rejoinder was filed by the Appellant and while replying to the preliminary objection of Respondent No. 3 that after the death of Smt. Amar Kaur a writing was executed by all her sons and daughters that she had not executed any Will and that writing was available with one Jaspal Singh, a Mama of the parties, the Appellant did not specifically deny that such a writing was executed. It was stated that said Jaspal Singh, the Mama of the parties and Respondent Surinder Pal Singh assisted by some mischievous persons, had taken away some signed blank judicial papers from the residence of the parents of the Appellant, during their life time and it appeared that those blank papers had been used by Surinder Pal Singh, in connivance with Jaspal Singh, to fabricate some writing.
7. The learned trial Court framed the following issues, on the pleadings of the parties:
1. Whether the deceased Smt. Amar Kaur had executed a valid will deed in favour of her daughter Miss Prem Mohini Gupta in respect of her entire movable and immovable properties? .... OPP.
2. Whether the petition suffers from delay and latches, as alleged? .... OPR.
3. Whether the petition is not maintainable for want of requisite Court fee? .... OPR.
3-A. Whether the petition is not covered by the provisions of Section 276 of the Indian Succession Act, as alleged? .... OPR.
3-B. Whether this Court has no jurisdiction to try the present petition, as alleged? .... OPR.
4. Relief.
At the end of the trial, Issues No. 1 and 2 were found against the Appellant and consequently the petition was dismissed.
8. Appellant has challenged the findings of the learned District Judge on Issues No. 1 and 2, on the grounds that the oral as also the documentary evidence, led by the parties, has not been rightly appreciated. It is alleged that there were admissions of two of the siblings of the Appellant and the contesting Respondent Surinder Pal Singh that Smt. Amar Kaur had executed a Will in favour of the Appellant and that those admissions conclusively proved the execution of the Will. It is also alleged that none of the witnesses examined by the Respondent has denied that the Will Ext.PB, set up by the Appellant, bears the signatures of the deceased. It is also stated that the testimony of the scribe, namely Bali Ram and one of the attesting witness, namely Piare Lal Sood, prove the execution of the will. The findings of the learned trial Court that the petition is hit by delay and latches, has also been challenged and it is alleged that there is no time limit for making an application for grant of probate.
9. Respondent Surinder Pal Singh died during the pendency of the appeal. His legal representatives were brought on the record. They appeared through their Counsel Shri S.V. Sharma. However, when the matter was taken up for hearing, nobody appeared for the legal representatives of deceased Respondent Surinder Pal Singh. So, there are just one sided arguments, addressed by the learned Counsel for the Appellant.
10. The learned Counsel representing the Appellant, namely Shri Kuldip Singh Senior Advocate, assisted by Mr. Bimal Gupta, Advocate, made the following submissions:
(A) Will Ext. PB, set up by the Appellant, had been duly proved by the scribe and one of the attesting witnesses and that even the witnesses of the Respondents did not dispute the signature of late Smt. Amar Kaur on the Will and moreover, two of the legal representatives of Smt. Amar Kaur, that is one son and one daughter, also impleaded as Respondents, admitted the execution of the Will, in their written statements.
(B) The allegations that the second page of the Will has been changed/ replaced, even if accepted, does not make any difference, because there is no change in the contents of the Will and that the change is only in respect of the date of the attestation of the Will.
(C) Respondent Surinder Pal Singh, having already been given property equivalent bo his share, was not to get anything out of the estate, even if the Will was not there.
11. I have considered the arguments advanced by the learned Counsel for the Appellant and perused the record.
12. Ext. PB is the Will, set up by the Appellant. It is written on two non-judicial papers, bearing machine printed numbers 555299 of 1986 (which is the first sheet) and 0849392 of 1986 (which is the second sheet). Type written date of the Will is 17.9.1986. The purported signatures of Smt. Amar Kaur on this Will is not at the point meant for the signature of the testatrix, which is usually above the word testator/testatrix and the name and the address of the testator/testatrix. The signature appears below the word testatrix and her particulars and also there is a gap of about two centimeter, where the aforesaid word and particulars are type written and the signature. The will bears the signatures of the scribe and below his signatures, in the blank portion of the stamp of the scribe, No. 191 and date 3.9.1986 are written in hand. The date below the signatures of the two attesting witnesses, namely Dr. Piare Lal Sood, examined as PW-4 and Dr. K.S. Jamwal (not examined) has apparently been changed by over-writing and made to read as 30.9.1986. From the date below the signatures of Dr. K.S. Jamwal, it appears that the date which was written was 27.11.1986. The Respondent produced the Photostat copy of the Will and got it proved. The same is Ext.R-13. The first page of the Will bears the same machine printed number and the year as the first page of the Will Ext. PB. However, the second page bears the machine printed number 0849391, though, the number of the second page of Will Ext.PB is 849392. The type written date below this Will is also 17.9.1986 as in the case of the second page of Will Ext.PB. Type written material on this page is verbatim the same as on the second page of Ext. PB. But this page bears the purported signature of Smt. Amar Kaur, the testatrix, at two points, one at the right place, i.e. above type written word testatrix and her particulars and the other below the aforesaid typewritten matter. The gap between these type written words and the signature below them is only one centimeter, though in the case of second page of Ext.PB, the space between similarly typed words and the signatures is about two centimeter. Also the signature below the aforesaid typewritten words on the second page of the two documents are at different places and they do not look similar, even to the naked eyes. The date below the signatures of the witnesses on the second page of Ext.R-13 is also different. The date is 27.11.1986.
13. The Respondent also proved on record a writing, Ext.R-4, which is signed by all the sons and daughters of Smt. Amar Kaur, including the Appellant. Through this document, all the sons and daughters of the deceased confirmed that she (the deceased) had not left any Will, except in respect of eight plots, which she had already sold and in respect of which advance had been received by her and the balance payment was to be made to her husband Jagdish Chander Gupta. It is also stated in this writing that it had been agreed by the executants that the property of the deceased would be shared by all her sons and daughters. Further it recites that the property already registered in the name of the Appellant was to remain with her. The explanation given by the Appellant with respect to this writing in her deposition is that she and her father Jagdish Chander Gupta had been locked up by Jaspal Singh and Surinder Pal Singh and other relatives and they were forced to put their signatures on it. It may be submitted that the writing bears the signatures of Jagdish Chander Gupta, the father of the parties also. The explanation on the face of it is false, because inspite of the Respondent having specifically stated in the preliminary objection No. 5 of his reply that such writing was prepared immediately after the death of Smt. Amar Kaur, the Appellant in her rejoinder did not deny the allegation specifically, nor did she pleaded any explanation, leave alone the one testified by her, while in the witness box as PW-1 or suggested to the Respondent, while he was in the witness box as RW-1 and Jaspal Singh, the Mama of the parties, who proved this writing while in the witness box as RW-8.
14. Respondent also proved on record an application Ext.R-1, in the name of Jagdish Chander Gupta, the father of the parties. This application is addressed to Sub-Registrar (Rural), Shimla. A request was made through this application that the Sub-Registrar may visit the house of Shri Jagdish Chander Gupta to register a Will, an instrument of General Power of Attorney and the lease deed at the resident of the applicant, as he and his wife, Amar Kaur were enable to move and were confined to bed.
15. The Petitioner examined a Clerk from the office of Sub-Registrar, as also the Sub-Registrar to prove this application (Ext.R-1) and also an endorsement made by the Sub-Registrar, on this application, after visit to the house of the parents of the Appellant. The witnesses are RW-2 Smt. Rajni, Clerk and RW-3 Shri S.R. Bhardwaj, Sub-Registrar. Smt. Rajni stated that the application was presented from the side of Jagdish Chander Gupta, the father of the parties. RW-3 Shri S.R. Bhardwaj stated that the application was brought to his office by Smt. Prem Mohini, the Appellant and that he had told the Appellant that he would visit their residence after office hours. He also stated that he went to the house of Shri Jagdish Chander Gupta in the company of Piare Lal Negi, a Clerk, after 5.00 p.m. and read out the contents of the Will to Smt. Amar Kaur and also tried to explain the contents to her, but she was unable to understand and follow the same and she did not put her signatures on the Will. He further testified that Amar Kaur was unable to speak. He also stated that he being not satisfied that the Will had been executed by her, as she was unable to understand its contents, he did not register it and made an endorsement to this effect on Ext. R-l.
16. It is in the light of the above stated position that the evidence led by the Appellant, with regard to the execution of the Will, set up by her, needs to be appreciated. The Appellant in her own testimony as PW- 1 stated that the Will Ext. PB had been executed in her favour by her mother Smt. Amar Kaur. She stated that nobody had been called from the office of Sub-Registrar to the house of her mother to register the Will. She produced mark ''X'', a Photostat copy of the Will, the second page of which is similar to Ext.R-13, proved by the Respondent, and dis-similar to Ext.PB, the Will, set up by her. It has already been noticed hereinabove that the second page of Ext.PB is materially different from the second page of Ext.R-13 and even the signatures of the testatrix on these two pages do not tally. She identified the signatures Ext.PB/1 on Ext.PB to be of her mother. She, however, did not say that the Will was executed or even attested in her presence.
17. PW-3 Bali Ram Gupta, the scribe, stated that the draft of the Will, which was in Urdu was given to him by Jagdish Chander Gupta, the father of the Appellant and the husband of the testatrix and he transliterated the draft in Devnagri script and that script is Ext. PB. He stated that he read over the contents of the Will to Smt. Amar Kaur, who admitted the same to be correct and put her signatures on it. He also stated that he made an entry regarding the Will in his register at serial No. 191 on 30.9.1986. It may be pointed out that the witness is licenced deed writer. He stated that he obtained the signatures of the executant and the witnesses against the relevant entry in his register. PW-4 Dr. Piare Lal Sood, one of the attesting witnesses of the Will stated that the Will had been executed by Smt. Amar Kaur, but he did not remember in whose favour she made the bequest. He stated that the contents of the Will were read over to the executant, but he did not remember, who was reading out the same. He did not say that the scribe was there and it was he who read out the contents of the Will to the testatrix. He denied that there was any overwriting. He denied that the date below his signature was changed to 30.9.1986 by overwriting. This statement is wrong and on the face of it, because as already noticed the date has been changed by overwriting.
18. In the cross-examination, PW-4 Dr. Piare Lal Sood was confronted with mark ''B'', another copy of Ext. R-13. He was confronted with his signatures, particularly the date below his signature. He admitted that it bore his signature and the date below his signature was 27.11.1986 and written in his hand. When asked to explain that on Ext. PB, the date below his signature was 30.9.1986 and according to him, it had not been overwritten, then how the date below his signature at mark- ''B'' could be 27.11.1986. He said that Smt. Amar Kaur might have executed two Wills. That is nobody''s case. The explanation appears to have been woven on the spur of the moment. Falsity of the explanation shows that the witness had been hiding the truth. He stated that he signed mark ''X'', another copy of Ext.R-13, at the instance of Shri jagdish Chander Gupta, the father of the Appellant. He admitted that Smt. Amar Kaur had suffered an attack of paralysis, though he denied that her faculty of understanding had been affected due to paralysis.
19. The learned Counsel representing the Appellant argued that it appeared that when the Will was typed, one carbon copy was also prepared and that is why the machine printed number of the judicial papers on which the second page of Ext.R-13 appears, is different from the machine printed number of the judicial paper on which the second page of Will Ext.PB appears. This argument cannot be accepted. The reason is that the difference is not only in respect of the machine printed number of the two papers of the second page of the Will, but also several other differences, as noticed earlier, including the dis-similarities in the signatures of the testatrix and the dates below the signatures of the attesting witnesses are there.
20. The learned Counsel further submitted that, there were admissions by Respondent No. 2 and Respondent No. 5, in their written replies, that Smt. Amar Kaur had executed Will in favour of the Appellant. Admittedly, these two Respondents had no personal knowledge about execution of the Will by Smt. Amar Kaur. It is well settled that an admission of a person is binding only if the facts alleged to have been admitted are based on his/her personal knowledge and not otherwise. Reference in this regard may be made to
21. The submissions of the learned Counsel for the Appellant that Respondent No. 2 was not to get anything out of the estate of the deceased, as he had already got his share separated, is totally irrelevant to the question whether the deceased made any Will or not, especially when the question is being looked into in probate proceedings and not in a case for claim to the property, affected by the Will.
22. It may not be out of place to mention that PW-8 Jaspal Singh, the Mama of the parties, while in the witness box, produced four stamps papers and four non-judicial papers and stated that these papers were collected from the Appellant and her father Jagdish Chander Gupta, at the time, when writing Ext.P-4 was executed by them. On two of the stamp papers, the instrument of Power of Attorney (in part) is typewritten. Its reading suggest that Appellant was to be appointed as attorney of her mother Smt. Amar Kaur. The stamp papers purport to have been purchased on 13.8.1986, by Smt. Amar Kaur. Two other stamp papers purport to have been purchased on 21.11.1986, These are blank, but bear the purported signatures of Smt. Amar Kaur, the mother of the Appellant and also two thumb-impressions at the bottom. The four non-judicial papers are all blank, but at the bottom, they bear the signatures purportedly of Smt. Amar Kaur and also the thumb-impressions. Now if the Appellant and her father were possessed of blank stamp papers and non-judicial papers bearing the signatures and perhaps also the thumb-impression of the deceased Smt. Amar Kaur at the bottom, it can legitimately be presumed that they had obtained the signatures of the deceased on blank papers, for using those papers for the disposition of her property and it is quite likely that the signatures of Smt. Amar Kaur on the second page of Ext. PB and Ext.R-13 were also obtained, when the same were blank and the portion of the Will was typewritten thereon subsequently.
23. In view of the above discussion, no interference with the finding of the learned District Judge (Forests), Shimla, that the execution of the Will is shrouded by suspicious circumstances, is called for.
24. However, the findings of the learned District Judge that the petition is hit by delay and latches, cannot be sustained. It is the admitted case of the parties that the death of Smt. Amar Kaur had taken place in January, 1987. In the reply of Respondent No. 2 it is stated that in March or April, 1987, the Appellant had sought attestation of mutation of the estate of her mother, on the strength of the Will, in question. It is also stated in the reply of Respondent No. 2 that he filed a case in the civil Court, claiming right over the property left by his mother and the Appellant contested that suit, alleging that her mother had executed a Will in her favour. These two facts suggest that the Appellant had stated claiming the right on the estate of her mother, on the basis of Will, soon after her death. Therefore, the petition for grant of probate, cannot be rejected, on the ground of delay and latches.
25. In view of the affirmation of the finding of the District Judge (Forests), Shimla that the execution of the Will is shrouded by suspicious circumstances, the appeal is dismissed with costs quantified at Rs. 5,000/-, to be paid to the contesting Respondents.
