Pradeep Nandrajog, J.@mdashLate Smt. Krishna Devi died on 8th July, 1983 at the age of 74 years. She was survived by three sons, Vidya Sagar, Yudhishter Lal and Ranbir. At the time of her death, she was the owner of property bearing Municipal No. D-SC/3, Mansarovar Garden, New Delhi and H-6/16, Malviya Nagar, New Delhi. She had various amounts lying in credit in accounts opened with State Bank of India, Karol Bagh branch and Nagpur branch as also Punjab National Bank, Gurdwara Road, Karol Bagh, New Delhi. She held certain shares in companies. Though, Yudhishter Lal asserts that she had personal jewellery, but at the hearing held on 23rd August, 2006, Shri Atul Jain, learned Counsel for Shri Yudhishter Lal stated that his client does not wish to rake up any issue pertaining the jewellery.
2. In any case, in the present proceedings, issue of title and determination of the estate of the deceased is not required for the reason Vidya Sagar Soni seeks probate of a will purported to have been executed by the deceased on 3rd May, 1981. Ranbir supports Vidya Sagar. Yudhishter has opposed the petition.
3. On 9th September, 1988, following two issues were framed:
1. Whether the will dated 3rd May, 1981 was validly executed by the deceased Smt. Krishna Devi Soni while possessed of sound disposing mind?
2. Relief.
4. Parties have led evidence which consists of parole as documentary evidence. Petitioner has examined, besides himself three witnesses. Yudhishter Lal has examined, besides himself, one Shri D.P.Mehta as a witness.
5. Section 2(h) of the Indian Succession Act, 1925 defines a will to mean 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.
6. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is the last will of a free and capable testator.
7. A will is a solemn document, being written by a person who is dead and who cannot be called in evidence to testify about the due execution of the will. It is the living who have to establish the will. It naturally throws a heavy burden on the court to satisfy its judicial conscience that the burden of proof of due execution is fully discharged and every suspicious circumstance explained.
8. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its own circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of the will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of Laws but are rules of prudence. Normally, a will is executed by a person where he desirous, to either alter the normal rule of succession, or where he desirous to settle his estate in a particular manner amongst the legal heirs. Therefore, though to be kept in mind, as to what is the nature of bequest too much importance cannot be attached to the disproportionate nature of a bequest. However, as observed in
9. Therefore, the first rule to appreciate evidence is to peruse the will. Normally, if there is rationality in a will, a presumption arises about due execution. Of course, being a presumption, it is rebuttable.
10. As observed in
11. The more unreasonable an instrument is, the less probative value it carries. Where the terms of a will are unusual and the evidence of testamentary capacity doubtful, or due execution doubtful, the vigilance of the Court will be roused and before pronouncing in favor of the will, the court would microscopically examine the evidence to be satisfied beyond all reasonable doubt that the testator was fully conversant of the contents and executed the will fully aware of what he was doing.
12. Expanding on the care and caution to be adopted by courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw & Tr. 431 In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.
13. This affirmative proof of the testator''s knowledge and approval must be strong enough to satisfy the court, in the particular circumstances, that the will was duly executed.
14. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. If a testator merely cats his eye over the will, this may not be sufficient. 1971 P.62 R M. In the report published as (1867) 1 P.D.359 Goodacr v. Smith, it was held that another form of affirmative proof is to establish that the testator gave instructions for his will and that the will was drafted in accordance with those instructions.
15. Courts have to evaluate evidence pertaining to the circumstances under which the will was prepared. If a will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the will, probate would not be granted unless that suspicion is removed.
16. As held in the report published as (1838) 2 Moo P.C. 480 Barry v. Butlin, a classic instance of suspicious circumstances is where the will was prepared by a person who took a substantial benefit under it. Another instance is as opined in the report published as (1890) 63 LT 465 Brown v. Fisher where a person taking benefit under the will has an active role to play in the execution of the will.
17. A word of caution. Circumstances can only raise a suspicion if they are circumstances attending, or at least relevant to the preparation and execution of the will itself.
18. How the legal heirs acted and how and when a will was propounded after the death of the executor are also relevant to decide upon, where the will is genuine or a created or a procured document.
19. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. As observed in the report published as
20. Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the will.
21. Reference to satisfaction of judicial conscience is a heritage inherited by court''s since time immemorial for the reason, as noted above, a will is a solemn declaration as per which the living have to carry out the wishes of a dead person.
22. With the aforesaid understanding of the law, let me now evaluate the evidence.
23. The will in question is a typed document. It is in English. Signatures of Smt. Krishna Devi are in Devnagari script. The piece of paper on which the will is typed admeasures 5.3" x 7.5" (Five and one third inches x seven and a half inches). On the rear side, two persons have signed as witnesses. The operative part of the will is on one side of the page. 30 lines have been squeezed into one side of the page.
24. The page in question is apparently removed from a note pad evidenced from the top of the page which shows that it has been torn out from a note pad.
25. The first suspicious circumstance which flows out is from the very nature of the document.
26.It is nobody''s case that the deceased had a typewriter and that she typed the will. If Krishna Devi had gone to a typist and had got the will typed, surely, the typist would have used a normal sheet and not a sheet removed from a note paid measuring 5.3" x 7.5".
27. As per the will, Yudhishter has been disinherited. Petitioner, Vidya Sagar Soni, is the beneficiary of the house at Mansarovar Garden. Ranbir is the beneficiary of house at Malviya Nagar. Movable assets has been bequeathed to the petitioner.
28. The will contains a recital, in para 2, as under:
2. My eldest son Shri Y.L.Soni is disinherited absolutely and after my death, he shall not get anything whatsoever out of my estate and I have no connection whatsoever with him for so many years.
29. Yudhishter Lal stands completely disinherited. An apparent reason to be found is that he was having no connection with his mother for the last many years.
30. Disproportionate nature of bequeathed has been recognised as a suspicious circumstance. Has this suspicion being dispelled?
31. Reason recorded for disinheriting Yudhishter Lal is that he had no connection with the deceased for so many years.
32. The will is dated 3rd May, 1981. The deceased did on 8th July, 1983.
33. Deceased died at Bhopal where she was residing with Ranbir. But, she remained in touch with Yudhishter Lal and enjoyed cordial relations with him. Ex.RW-2/1 to Ex.R-2/19 are the letters written by the deceased to Yudhishter. Letters cover the period 1956 onwards till 1982. The letters show the usual concern of a mother for her son and the well being of his family. I, need not write a line about all the letters save and except Ex.R-2/13 and Ex.R-2/15 which are letters dated 26th July, 1980 and 1st October, 1981 respectively written by the deceased to her son Yudhishter Lal. The two letters are proximate to the time when the will was written. One letter is about nine months prior to the will and the other is about five months after the will.
34. In Ex.R-2/13, written on 26th July,1980, the deceased wrote to Yudhishter that she would be coming to stay with him at Jaipur in the month of October. The letter sends greetings and blessings to the wife of Yudhishter and his family members.
35. Ex.R-2/15 written on 1st October,1981 expresses concern about the health of the wife of Yudhishter in relation to some eye ailment.
36. The letters belie the recital in the will that the deceased was having no connection with Yudhishter for so many years.
37. Learned Counsel for the petitioner relied upon Ex.P2 being a letter written by wife of Yudhishter to the deceased to urge that the said letter shows that relations between the deceased and Yudhishter were not cordial.
38.The letter is dated 13th September, 1978. The letter shows that the deceased was annoyed with Yudhishter and that the daughter-in-law was bridging the gap. The emotions and sentiments expressed in the letter show that for some sentimental reasons, the deceased had got annoyed with Yudhishter and his family. Letter does not show that relations had broken down irretrievably. The daughter-in-law has written to her mother-in-law that she is the mother. That a mother always loves and blesses her children. That a mother who gives birth to children is always forgiving. That such a mother can never forgot her children. That a mother is so great that she can withstand everything from her children. That a mother is full of forgiveness.
39. As I read Ex.P-2, it shows that the deceased felt disturbed by something which happened. The daughter-in-law was pacifying the mother-in-law. The letter does not show a big fight between the mother and the son. I cannot find any equivalent word to describe the sentiments expressed in the letter. But in vernacular, there is an apt expression. It is called "ruswai".
40. The "Ruswai" of the mother-in-law was being pacified by the daughter-in-law. Nothing more.
41. In any case, Ex.R-2/13 and Ex.R-2/15, being the letters written by the deceased to her son on 26th July, 1980 and 1st October, 1981 show that the misunderstanding, if any, in the year 1978 was removed and all was well.
42. In his testimony, Yudhishter, who was examined as RW-1 has stated that his mother had stayed with him at Jaipur for about six months from the first week of November, 1980. This testimony of his has gone unchallenged. This also shows cordial relations. The evidence contradicts the recital in the will noted in para 26 above.
43. A letter Ex.PW1/2 written by one Laxmi Devi on 19th December, 1983 was pressed into aid by Shri S.C.Singhal, learned Counsel for the petitioner to urge that the said letter shows inimical relations between the deceased and Yudhishter.
44. In the said letter, Laxmi Devi a friend of the deceased has written that she had learnt that the deceased had some difference of opinion (man mutav) with Yudhishter.
45. The expression used in the letter in question is:
malum hua that ke Yudhishterji bhi Delhi gaye the prantu main naa mili. Suna that ke kutchh man mutav chal raha hai.
46. It is obvious that Laxmi Devi had hearsay knowledge. She had heard some gossip. Expression used is that she had learnt about the same.
47. That there was cordial relations between the three siblings of Krishna Devi and that Krishna Devi had cordial relations with her son including Yudhishter has been admitted by the petitioner who in cross-examination admitted that his mother had stayed at Jaipur with Yudhishter for three or four months before she came to Delhi in May, 1981. He further admits that about 10 days prior to her death, he went to Bhopal and noticing the serious condition of his mother, he informed respondent No. 2 about the same through a telegram.
48. Totality of evidence establishes cordial relations between the deceased and Yudhishter. The evidence establishes that the recital in the will is incorrect.
49. On the execution of the will, evidence is the testimony of R.C.Jain, examined as PW-1 and testimony of Reaz-ul-Rehman examined as PW-2 who are the attesting witnesses to the will. Besides, Ranbir, the third son who has been examined as PW-3, and Vidya Sagar i.e. petitioner who has been examined as PW-4.
50. The will is dated 3rd May, 1981. It is purportedly executed in Bhopal. Was the deceased in Bhopal on 3rd May, 1981?
51. Yudhishter who examined himself as RW-1, in his examination-in-chief has deposed as under:
My mother had come to see me at Jaipur in the first week of November, 1980. I had requested her to come to me and she was also desiring to come to me. She stayed with me for about six months. She left for Delhi around 24th April, 1981. At Delhi, she stayed with Smt. Laxmi Devi who was a close friend of my mother.... From Delhi, she had gone to Saharanpur because her sister''s son had expired. On 1/2nd May, 1981, she returned to Delhi and stayed with Smt. Laxmi Devi for 15 to 17 days. In May, 1981, the petitioner had come to Delhi on his official tour. From Delhi, the petitioner took my mother with him to Nagpur. They had left Delhi on or about 16/17 May, 1981.
52. Only question put to the witness in cross-examination was that he was putting up a false story regarding presence of the mother not being at Bhopal on the date when the will was executed.
53. Testimony of RW-1 has not been shaken. On the contrary, admissions of the petitioner during cross-examination support the testimony of RW-1. I reproduced from his cross-examination:
I am staying in Nagpur since 1978. It is correct that my mother stayed at Jaipur with respondent No. 2 for a period of 3/4 months. I cannot recollect whether I came to Delhi in May, 1981. It is correct that my mother left for Nagpur with me sometime in the year 1981.
Q:I put to you that your mother accompanied you from Delhi to Nagpur on May 18, 1981?
A: It is correct that my mother and I left for Nagpur from Delhi in the year 1981. However, I did not remember the month or the date of our departure.
Q:I put it to you that on May 2, 1981, you came to Delhi from Nagpur on official tour and stayed with one Mr. Prem Kumar at his residence?
A:I often come to Delhi on official tour. However, I cannot recollect the date and month of my official tours to Delhi.
54. Petitioner has admitted that the deceased had stayed with Yudhishter at Jaipur for a period of 3/4 months. According to Yudhishter, mother had come to him at Jaipur in the month of November, 1980. It is obvious that the deceased had come to Delhi in the month of May, 1981. Petitioner has categorically admitted that in the year 1981, his mother had accompanied him from Delhi to Nagpur.
55. Selective amnesia shown by the petitioner is obviously for the reason the mother was not in Bhopal in the month of May, 1981.
56. What clinches the issue is non cross-examination of RW-1 on the issue save and except a bald suggestion.
57. Any doubt regarding presence of Krishna Devi at New Delhi on 3.5.1981 is cleared from the testimony of RW-2, Sh. D.P. Mehta. He deposed that on 3.5.1981 he had seen Krishna Devi at house of his in-laws. He stated that Krishna Devi and his mother-in-law were related. His testimony was not shattered in cross examination.
58. That apart, testimony of the two attesting witnesses does not inspire any confidence. R.C.Jain and Reaz-ul-Rehman are the two attesting witnesses to the will. They have been examined as PW-1 and PW-2 respectively. In cross-examination, R.C.Jain stated that he was never called or summoned to witness the will. That per chance, he had gone to the house of Sh. Ranbir at Bhopal in the evening and signed the will as an attesting witness. Even PW-2 Reaz-ul-Rehman in cross-examination stated likewise.
59. It is strange that the deceased who executed the will on 3rd May, 1981 did not summon anybody to witness the will and got the same witnessed by two friends of her son who per chance happened to visit the house of her son.
60. Any person who is desirous of executing a will would presumably summon two close friends to witness the execution of the will and sign as attesting witnesses.
61. When question in cross-examination as to who were present in the room when will was executed, PW-1 stated that no other family member was present. He stated that the wife of Ranbir was in the house but stated that she was in the kitchen.
62. However, PW-2 stated that when the will was being executed wife of Ranbir had served them tea.
63. In cross-examination, PW-1 stated that Krishna Devi did not tell them from where she had got the will prepared. He stated that Krishna Devi showed him the will as it had already been written. He stated in cross-examination that he had read the will himself at that time. He stated that he did not read out the will to Krishna Devi. However, PW-2, Reaz-ul-Rehman, contradicted this testimony of PW-1 when, in cross-examination, he categorically stated that neither he nor PW-1 read the will.
64. Neither (PW-3) Ranbir nor (PW-4) petitioner have thrown any light as to from where the deceased got the will typed. Attesting witnesses have thrown no light on this aspect of the matter.
65. The creation of the will itself is highly doubtful. More so, from the peculiar nature of the document as noted above. The will has been typed on a sheet of paper removed from a note pad. From the dimensions of the paper, it can safely be presumed that no typist who is required to type out a will would use the paper of the kind used.
66. Suspicion gets graver when I look to the evidence as to how the will has surfaced.
67. Probate petition has been filed on 16th July,1985. The deceased died on 8th July, 1983.
68. It is interesting to note that the petition was prepared on 9th January, 1984 but has been filed on 16th July, 1985. Affidavit in support of the petition has been deposed to by the petitioner on 9th July, 1985.
69. According to the testimony of PW-3, Ranbir, he learnt about the will five to six months after the death of his mother. According to PW-4, the petitioner, he discovered the will in the locker which was in the joint name of his mother and his wife with Punjab National Bank, Karol Bagh, New Delhi.
70. How did the will in question reach the locker? There is no evidence that the deceased operated the locker after 3rd May, 1981 till she died. To create evidence that the mother had put the will in the locker, PW-4 has stated in his evidence that his wife did not operate the locker during the life time of his mother, but petitioner has not summoned any official witness from the bank, much less got summoned the record pertaining to operation of the locker. He who asserts a fact has to prove the same. Petitioner has not proved that the mother accessed the locker after 3rd May, 1981.
71. As per PW-4, he learnt about the will when his wife operated the locker 2/3 months after the death of his mother. According to PW-3, he learnt about the will when he received information from PW-4. According to PW-2, when the will was being executed, wife of PW-3 had served them tea.
72. If the will was executed in the house of PW-3, where the will purports to have been executed, and wife of PW-3 was present in the house and had served tea to the attesting witnesses I cannot believe that PW3 would not have known about the existence of the will.
73. Ex.PW-3/D1 is a letter dated 18th July, 1983 addressed by Ranbir (PW3) to the Manager, Punjab National Bank, Gurdwara Road, Karol Bagh. The letter pertains to locker No. 2374. In the said letter, PW3 has written to the Manager, inter alia:
I have to advise that my mother Smt. Krishna Devi Soni wife of late Shri Khan Chand has expired on 8th July, 1983 at Bhopal. She was having a locker with your bank which can be operated by Smt. Krishna Devi and Smt. Indu Rani Soni wife of Shri Vidya Sagar Soni (my sister-in-law). I, being one of the legal heir of the deceased, inform you that now locker should not be allowed to be operated by the survivor as it is now under dispute. My mother Smt. Krishna Devi Soni (deceased) has not left any will or any other legal document before her expiry.
74. In his cross-examination, PW-3, in reference to Ex.PW3/D1 stated as under:
I did write to the Punjab National Bank, Karol Bagh branch to stop the operation of locker in the name of my mother. This letter I wrote a day or two after the kirya ceremony and handed over the same to my brother, the petitioner for him to deliver the same to the bank. I also did write in this letter that my mother Krishna Devi did not leave any will. The carbon copy of that letter is Ex.PW3/D1.
75. PW-3 is positive in his version that Ex.PW3/D1 was handed over by him to the petitioner for delivery to the bank.
76. What does the petitioner have to say on this issue? In his cross-examination, petitioner has completely denied about the letter. He has deposed:
It is not correct that my younger brother Shri Ranbir Soni handed over letter Ex.PW3/D1 to me for being given to the Manager, Punjab National Bank, Gurdwara Road branch, Karol Bagh, New Delhi.
77. It is obvious that the petitioner is stating false facts and his brother who was examined as PW-3 stated correct facts pertaining to Ex.PW3/D1.
78. Evidence probabilises that the brothers were aware that the mother had not executed any will. They wanted to preserve the purity of the locker. After sometimes, the document was fabricated. To explain the time gap between the date of death of the deceased and the first time when the will was propounded, story of the will being found in the locker has surfaced.
79. As noted above, petitioner has led no evidence that the mother accessed the locker after 3rd May, 1981. That apart, testimony of PW-2, if to be believed, shows presence of wife of PW-3 in the house when will was executed. I cannot believe that PW-3 was not aware of the existence of the will, if one was executed.
80. Seeing cumulatively, the circumstances brought on record create grave suspicion, a suspicion so grave that it can hardly be removed, that the will is a created document. The suspicion establishes a high degree of probability justifying a reasonable conclusion that the will is a fabricated document. Following dubious and suspicious circumstances emerge:
i) The very nature of the document, being the sheet taken out from a note pad admeasuring 5.3" x 7.5". No typist would have used a paper of this small dimension to type a will.
ii) 30 lines have been cramped into a small space. There is no evidence of shortage of paper.
iii) There is no evidence that the deceased was well versed in English. The will purports to be signed by her in Hindi. There is no evidence that somebody explained the contents of the document to the deceased by reading out the same to her before she executed the same.
iv) Where was the document got typed? It remains a mystery. Who got it typed for her? It also remains a mystery.
v) Recital in the will that the deceased was having strained relations with the objector are belied from the documentary evidence and in particular letters Ex.RW2/13 and Ex.RW2/15 written by the deceased to the objector on 26th July, 1980 and 1st October, 1981 respectively.
vi) Evidence of the objector and admissions of the petitioner that the mother had stayed with the objector a few months prior to May, 1983 also establishes cordial relations.
vii) The recital justifying disinheritance is obviously false.
viii) Non cross-examination of the objector pertaining to the testimony that the mother was in Delhi in the first three weeks of May, 1983 and had left Delhi, accompanied by the petitioner for Nagpur on 18th May, 1981 and evasive answers of PW-4 i.e. the petitioner on the issue casts a serious doubt that the deceased was in Bhopal on the day when the will was executed.
ix) Testimony of the objector that the deceased was in Delhi on 3rd May, 1981 stands corroborated from the testimony of RW-2 Shri D.P.Mehta.
81. I accordingly decide the issues by holding that the deceased did not execute any will on 3rd May, 1981. I hold that Ex.PW1/1 is not proved to be the last legal and valid testament of the deceased.
82. The probate petition is dismissed with costs against the petitioner and in favor of the objector assessed at Rs. 25,000/-.
