Kumar Kaurav v. State of NCT of Delhi

16. At the outset, it is noted that while granting a Probate, the Court is not deciding the disputes relating to the title. Reference can be made to the decision of the Supreme Court in the case of Elizabeth Antony vs. Michel Charles John Chown Lengera[5].

17. The Supreme Court in the case of Delhi Development Authority vs. Vijaya C. Gurshaney (Mrs) and Another[6] has also held that a testamentary Court, whilst granting Probate or Letter of Administration, does not even consider, particularly in uncontested matters, the motive behind the execution of a testamentary instrument. A testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument out of his free will. It is settled law that the grant of probate or letters of administration does not confer title to property. They merely enable the administration of the estate of the deceased. The relevant extracts of the said decision read as under:- “8.... It is settled law that a testamentary court, whilst granting probate or letters of administration does not even consider particularly in uncontested matters, the motive behind execution of a testamentary instrument. A testamentary court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a probate or letters of administration does not confer title to property. They merely enable administration of the estate of the deceased. Thus, it is always open to a person to dispute title even though probate or letters of administration have been granted.”

18. Furthermore, the Supreme Court in the case of Jaswant Kaur v. Amrit Kaur[7], has considered the scope of the testamentary Court‟s ambit in dealing with the probate case. The relevant extracts of the said decision read as under:-

of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances, that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.

6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.”

19. Upon a comprehensive consideration of the judicial pronouncements noted hereinabove, it emerges without ambiguity that the jurisdiction exercised by a testamentary Court in a probate proceeding is confined to examining the genuineness and due execution of the Will; it does not extend to adjudicating the disputed questions of title or ownership. A Will, like any other document, must be proved in accordance with the standard evidentiary principles, the touchstone being the judicial satisfaction of a prudent mind. The initial burden lies on the propounder of the Will to establish the essential elements underlying its valid execution, namely, that the testator had the requisite testamentary capacity, the Will was executed voluntarily, and attested in the manner prescribed by law. Once these foundational facts are established, the onus shifts to the caveator who alleges vitiating factors such as fraud, coercion, undue influence, or lack of free will. However, even in the absence of specific allegations, the surrounding circumstances attendant upon the execution of the Will may give rise to legitimate suspicion, warranting closer judicial scrutiny as to whether the testator acted voluntarily and with a sound disposing mind.

20. It is under the aforesaid background, if the facts of the present case are appreciated in the right perspective, there is no quarrel over the veracity of the Will, as both parties have heavily and copiously relied upon the recitals of the Will. The petitioners on 27.09.2019 filed their respective evidence by way of affidavit. On 03.03.2020, Shri Naveen Gandas, Record Clerk from the Archives Office, Mehrauli, recorded his statement as PW-3, whereby, the copy of the Will was preserved. The said witness has not been cross-examined by any of the respondents.

21. The petitioner nos.[1] and 2 examined themselves and were also crossexamined by the respondent nos.[2] and 3. The respondent no.3 did not adduce any evidence.

22. It be also noted that in the instant case, a specific affidavit was filed by one of the petitioners stating therein that none of the attesting witnesses is alive. In view thereof, the Court will have to consider the other attending circumstances.

23. Therefore, the evidence affidavits of PW-1 and PW-2 are of crucial importance, which clearly reaffirm the registration of the Will dated 23.04.1982. For the sake of convenience, paragraph no. 3 of evidence affidavit of PW[1] is reproduced as under:- “Statement of PW[1]......

3. That on 23.04.1982, the testator, namely Satya Niranjan Pashine, had executed a Will and the same was duly registered on 29.10.1984 in the Office of Sub-Registrar, New Delhi. The said Will provides to the bequeathal of the movable as well as immovable properties as contained therein. The said Will stands executed as per the law, and also the same has been executed in the presence of the witnesses named therein. Original Will dated 23.04.1982 and Site Plan are Ex.P-3/R-3(Colly-Part of Will).”

24. A perusal of the evidence and material available on record would clearly indicate that there is no doubt over the genuineness of the Will dated 23.04.1982. Even during the course of arguments, learned counsel for the respondents does not controvert the fact of the execution of the Will.

25. Furthermore, if the evidence of PW-3, namely Shri Niranjan Das, Record Clerk from the Archives Office, Mehrauli, is perused, it would clearly illustrate that the Will is the registered document as he testified that a record of the concerned Will exists and the Will produced by the petitioner and the one mentioned in the record book of the Registrar is one and the same. The relevant extracts of his evidence read as under:- “I have brought the record of original Will dated 23.04.1982 executed by Sh. Satya Niranjan s/o late Sh. Dayaram Pashine r/o House no. K-10,South Extension-I, New Delhi-110049. The concerned record exists at document no: 3841, book no.3, volume no.293 on pages 38 to 52 dated 29.10.1984. I have seen the original Will in the court record and the same is compared with the record brought by me and found to be the same. The original Will is exhibited as Ex.PW-3/A.”

26. In view of the aforesaid, since in the present case, there is no allegation of fraud or coercion that the concerned Will is a forged document, moreover, no evidence has been led regarding this aspect, this Court has no hesitation in deciding the Issue no.1 in the affirmative, holding that Will dated 23.04.1982 is the validly executed last Will of the testator. Therefore, the said issue is decided in favour of the petitioners.

27. So far as the objection raised by learned counsel for the respondents that the instant petition is premature is concerned, the Court needs to consider the recitals in the Will in question to adjudicate upon the said issue. Paragraph no.5 of the Will dated 23.04.1982 reads as under:-

28. A holistic and purposive reading of the recitals contained in paragraph 5 of the Will dated 23.04.1982 unequivocally reveals that the testator intended to nominate his wife, Smt. Indu Pashine (respondent no.3), as the initial executor and trustee of his estate, conferring upon her a life interest in the property. However, such construction is not the only plausible inference derivable from the text of the Will. The sequential nature of appointments further reflects the testator‟s deliberate design to ensure continuity in the administration of his estate. Upon the failure or unwillingness of the wife to act, the Will contemplates the appointment of the eldest daughter, Dr. Pushpa Gupta, and thereafter, in a similar contingency, the eldest son, Shri Ashok Kumar Pashine—the present petitioner—thereby constituting a chain of executorial succession. This layered structure underscores the testator‟s manifest intent to preserve the fiduciary oversight of the estate within the family.

29. Furthermore, the Will contains an express provision enabling the last appointed executor and trustee, Shri Ashok Kumar Pashine, to nominate a successor, preferably from among his five children or other family members, thereby perpetuating the familial control envisaged by the testator. It is also specifically provided that any executor or trustee, due to circumstances beyond their control, may resign by submitting a written communication, thereby facilitating an orderly transition of responsibilities without occasioning an administrative vacuum.

30. Admittedly, respondent no.3 was designated as the initial executor, but the Will clearly engrafts a contingency-based executorial scheme by which, on her default or omission to act, the eldest daughter and thereafter the eldest son were vested with the power and authority to assume the role of executor and trustee. Consequently, the petitioners, who derive their entitlement under such express provisions, cannot be considered strangers to the testamentary scheme. Their claim for the grant of probate is firmly rooted in the testator‟s intent as captured in the Will itself, especially in circumstances where the primary executor has either failed to act or neglected to assert her legal rights within a reasonable time. The petitioners thus have a substantial and legal foundation to seek probate of the Will upon the failure of the primary executor.

31. At this juncture, it is pertinent to refer to Sections 222 and 224 of the Act of 1925, which read as under:-

32. A bare perusal of Section 222 would indicate that the probate shall be granted only to the executor appointed by the Will. However, this is not the only implication that can be derived from the bare reading of Section 222, a perusal of sub-section (2) would signify that the appointment of the executor may be express or even by necessary implication. Moreover, Section 224 further signifies that in a contingency when several executors are appointed in the Will as per the intention of the Testator, the probate may be granted to all of them simultaneously or at different times. The intention of the Legislature further gets strengthened and gives a clear picture by way of an illustration appended to Section 224 of the Act of 1925. By way of illustration, it is clear that if „A‟ is an executor of B‟s Will by express appointment and „C‟ an executor of it by implication then in such an eventuality probate may be granted to „A‟ and „C‟ at the same time or to „A‟ first and then to „C‟ or to „C‟ first and then „A‟.

33. Reference can be made to the decision of Mithibai v. Canji Kheraj[8], wherein the Will reads as “In case of the death of my Wife Parvatibai, the said affairs and distribution of money mentioned above to be paid to my second wife, Bai Mithibai” In such a scenario, it has been held that:- “When a testator appoints an executor and provides that in ease of his death another should be substituted, then on the death of the original executor though he has proved the will, the executor so substituted may be admitted to the office, if it appear to have been tha testator’s intention that the substitution should take place on that event, whether happening in the testator’s lifetime or afterwards. Where a testator by his will names a person to discharge any duties under the will without expressly appointing him executor, the rule is that, unless it can be gathered from the will that the testator intended such person to pay the debts and legacies under the will, such person cannot be held to be the executor.”

34. However, in the present case, this is not a scenario as the substitution ILR 26 Bom 571 (1902). of the primary executor is not contingent upon the death of the primary executor rather, the Will in the present case is crystal clear that upon failing the primary executor, the other executor was appointed. Thus, on the fulcrum of Sections 222 and 224 of the Act of 1925, it is crystal clear that when several executors are appointed in the Will as per the intention of the Testator, the probate may be granted to all of them simultaneously or at different times.

35. Furthermore, the decision of the High Court of Judicature at Patna in Radha Piyari as relied upon by learned counsel for the respondents, deals with the situation where, the petitioners therein were remote legatees having no locus standi to file the probate case. It is under those circumstances, that the Court in the aforesaid case held that the petition at the instance of remote legatees was not maintainable. The said case is clearly distinguishable under the facts of the present case as in the present case petitioners are not remote legatees rather named as executors in the Will itself.

36. During the course of arguments, learned counsel for the petitioners fairly states that the right under the Will, which relates to the lifetime interest of respondent no.3 is concerned, remains undisputed. According to him, the probate petition has been filed as the principal executor failed to take timely steps to get the Will probated and to avoid any further legal consequences. He also submits that if such timely steps are not taken, the same would lead to multiple legal consequences.

37. Section 276 of the Act of 1925 reads as under:- “276. Petition for probate.— (1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating— (a) the time of the testator’s death, (b) that the writing annexed is his last Will and testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to the petitioner’s hands, and (e) when the application is for probate, that the petitioner is the executor named in the Will. (2) In addition to these particulars, the petition shall further state,— (a)when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and (b)when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate. (3)Where the application is to the District Judge and any portion of the assets likely to come to the petitioner’s hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.”

38. In the case of Ishwardeo Narain Singh v. Kamta Devi[9], the Supreme Court delineated critical prerequisites for granting probate. First, the onus probandi rests on the petitioner to substantiate the authenticity of the Will and voluntary execution by the testator. Second, probate proceedings, being in rem, are binding upon not only the litigants but also the public at large, coupled with a presumption of validity. Third, a will that appears regular and is duly attested engenders a presumption of validity, which holds unless contradicted by dubious circumstances. The Courts are tasked with ensuring the genuineness of the Will and dispelling any suspicions. Although technical evidentiary rules are applicable, the paramount criterion is the assurance of the Court with respect to the document‟s veracity.

39. The requirements enumerated in Ishwardeo Narain Singh stand fulfilled in the present case as has been discussed in the foregoing paragraphs.

40. It is further imperative to observe that a sine qua non for the grant of probate is that the Will in question must constitute the ultimate testament of the testator. Pursuant to clause (b) of Section 276 of the Act of 1925, the designation “last Will and testament” pertains to a document that remains extant postmortem, detailing the apportionment of immovable assets and the designation of beneficiaries.

41. On a brief scrutiny of the Will and the surrounding circumstances for its execution, there does not seem to be any other Will after the Will dated 23.04.1982. The same is, thus, found to be the last Will and testament in terms of the requirement of Section 276 of the Act of 1925.

42. The death certificate, as has been noted hereinabove, is also not disputed. The factum of registration of the Will also stands satisfied.

43. The Court, thus, finds that the said Will is a legally executed document, and on the basis thereto, the petitioner is entitled to the probate of the Will dated 23.04.1982 executed by the testator, late Shri Satya Niranjan Pashine.

44. The petitioner is directed to file the requisite Court fee with the registry and in compliance with the said requirement, let the registry issue AIR 1954 SC 280 the probate along with a copy of the Will which was furnished to the Court. The petitioner is further exempted from furnishing any security bond.

45. With the aforesaid directions, the instant petition stands allowed. The application(s), if any, stand disposed of.

JUDGE APRIL 17, 2025 Nc/@m