Narinder Kumar v. Usha Rani Tuteja & Ors.

11. It would be expedient to reproduce the reasons which have been accorded by the learned trial Court while passing the impugned judgment dated 22.03.2019, which go as under:

same they interest, liens and titles in respect of the above said property and as my wish I am bequeathing the above said property in favour of my only son namely Shri Narender Kumar. The Testator willingly makes this will that after her demise, all her rights, interests, liens and titles in the said property be acquired, possessed and inherited by the Executor, who may get the same mutated/substitted/transferred etc. in her own name, as owner in the RECORDS OF THE L&DO/MCD and all other concerned authorities on the basis of this Will or its certified true copy, without any objection by the Testator's legal heirs, their successors, et, or any body else. The Testator further declares that this is her FIRST and last will in respect of the said property, and has been executed by her own consent, without any force, fraud, coercion or allurement, from any corner whatsoever, while in possession of sound health and disposing mind. That in case if said Shri Narender Kumar, dies/die earlier than me, then the said property shall become the property of his legal heirs and successors. That the contents of this WILL have been explained to me which I have understood and is correct. That this is my last and final WILL in respect of the said property only.

IN WITNESS WHEREOF, I, the Testator have put my hands on this Will in the presence of the following witnesses on the date, month and year herein mentioned below. WITNESSES;- TESTATOR

1.

2.

36. The will had been allegedly executed on 26.11.2003 and bears the thumb impression of Smt Ram Pyari and signatures of two attesting witnesses i.e. PW-1 Sushma Arora and Jagdish Chander. Ms.Sushma Arora is sister of petitioner and Jagdish Tuteja is brother-in-law (husband of another sister) of petitioner. It is also attested by Notary Public on the same day in Delhi and bears the photograph of Smt Ram Pyari. As far as the mental state of testatrix is concerned, though respondent has stated that she was not in a good state of mind at the time of execution of alleged will, however, petitioner's witnesses have categorically stated that apart from suffering from old age ailments, she was in good state of mind and she having a sound mind to execute a will. Therefore, her state of mind at the time of execution of alleged will is found to be sound.

37. Though, it is not necessary to go into the background with respect to the ownership of the property, however, in order to clarify, certain facts which are relevant are necessary to penned down in order to understand the case properly. The property in question was allotted to two brothers Sh. Ramji Das and Sh Om Prakash and parties to the suit are the children of Sh. Om Prakash and Smt Ram Pyari was their mother. The property was equally divided between LR of Smt Ram Pyari and Sh Om Praksh vide partition deed dated 02.09.2008, Ex PWl/D-1. This partition deed clearly shows that attesting witness PW-1 namely Smt Sushma Arora is shown to be a co-sharer and their mother Smt. Ram Pyari died intestate. The last para of internal page no. 6 of said partition deed is produced as under:- "AND WHEREAS the said Smt. Ram Pyari died intestate and consequent upon her death, her one half (1/2) undivided share in the aforesaid property devolved upon the Second Party, as her only heirs"

38. It is very clear in the said partition deed that Smt. Ram Piyari died intestate. Secondly on internal page no.8 of the said portion deed which is Ex.PW-1/D-1, para 4 is produced herein as under: "That both the parties have assured each other that the property, hereby partitioned or portions occupied by them respectively, are free from all sorts of encumbrances such as prior sale, mortgage, liens, court injunctions, attachments, disputes, gifts, wills, exchanges etc and both the parties are having marketable title of their own respective share/portions in the above said property. Moreover, in future, if any defect shall be found in the I title of any party, then the other party shall be liable to indemnify the losses/damages sustained and suffered by the party concerned."

39. Both these paragraphs in the said partition deed shows that Smt Ram Pyari had died intestate. This document attains relevance in view of the fact that one of the attesting witness to the Will i.e. PW-1 Ms. Sushma Arora was signatory to this document despite knowing fully well since 2003 itself that her mother Smt. Ram Pyari had executed a Will in favour of her brother Narender Kumar (petitioner). She signed the said partition deed which raises suspicion upon the execution of the said will. Similarly in the year 2013, Relinquishment deed relinquishing her share apart from other sisters was executed by Ms Sushma Arora in favour of petitioner. In the said relinquishment deed also, Ms Sushma Arora stated that she was having 1/6"' share in the property and had relinquished her share in favour of her brother. This relinquishment deed was signed by all the sisters except respondent no. 3 who is the contesting respondent in this case. Other respondents no. 2, 4 & 5 have given their no objection to the probate petition and respondent no. 6 is exparte. Apart from these two suspicious circumstances, there are other relevant facts which raises suspicion on the execution of the will and they are as under:-

(i) The petitioner had claimed in the probate petition that said will was handed over to him personally by Jagdish Tuteja in the presence of all respondents at the petitioner’s house on the occasion of Sagan Ceremony of Inder Arora whereas PW-2 stated that petitioner was aware of his coming to Smt. Ram Pyari for preparation of a will and also stated that petitioner was present when the preparation of will was discussed. It is difficult to understand as to when the petitioner was aware about the preparation of the will by Smt Ram Pyari then why the attesting witness PW-2 handed over the will to the petitioner after seven years from the death of Smt Ram Pyari and why the petitioner Narender Kumar did not ask for the same from Jagdish Tuteja after death of his mother. Interestingly the other attesting witness to the will namely Ms Sushma Arora who has been examined as PW- 1 has given a different version and stated that her brother Narender Kumar i.e. petitioner herein was not aware about the execution of the will executed by their mother in his favour. Both the statements are contradictory and are very relevant in order to see that contradictory version with respect to preparation of will, execution of the same and coming in the hands of the petitioner have come on record.

(ii) PW-l Ms Sushma Arora during her cross examination stated that she, her Jija Ji i.e. PW-2 and their mother, all three went to Tis Hazari for attestation from Notary on the same date whereas PW-2 during his cross examination stated that he, Gulshan Kumar, who prepared the will of Smt Ram Pyari were only three persons who went to the court for preparation of will. He also stated that he did not appear before any attesting authority for the attestation of the will and it was- got attested by Smt Ram Pyari of her own, thus belying the version of PW-1 with respect to attestation.

(iii) PW-2 also stated that petitioner and Ms. Sushma Arora were having complete knowledge about the will of Smt Ram Pyari whereas PW-1 stated that petitioner was not aware about the execution of the will. Both the statements of attesting witnesses are contradictory. Moreover, petitioner has stated that he came to know about the will in the year 2012, thus making statement of PW-2 false.

(iv) Legal notice dated 08.01.2013 was sent by Advocate of respondent no. 3, which is admitted to have been received by PW-3 i.e. petitioner. Though, in the replication, it was denied by petitioner that petitioner alongwith), his wife have visited the office of the Advocate of the respondent no. 3 and has sought time for settling the matter, however, in the cross examination, he (PW-3) admitted having received the notice and visiting the chamber of the advocate and further seeking time for discussing about the settlement. This shows a clear false statement in the replication filed by plaintiff.

(v) The factum of signature of Ms. Sushma Arora on the partition deed wherein it is mentioned that Smt Ram Pyari had died intestate has already been discussed. This shows that till the execution of partition deed, there was no dispute between the parties and nobody, raised the question of execution of any will.

40. The aforesaid discussion clearly shows that will has been manufactured after receiving notice of the suit for partition by petitioner and the same is not a genuine document. Therefore, strong suspicion has been raised against the execution of the will by Late Smt Ram Pyari during her lifetime in view of the deviant testimonies of PW-1 and PW-2. In "Raja Ram Singh Vs. Arjun Singh & Anr 2002IVAD (Delhi) 55", it was held that:-

13. "In order to appreciate the credibility of the witnesses, the court can look into the surrounding circumstances"

41. The surrounding circumstances have already been discussed. The partition deed and the relinquishment deed are surrounding circumstances and execution of these deeds show that no will was ever executed by testatrix in favour of petitioner. Hence, this issue is decided against the petitioner. Relief

42. Hence, in view of the findings given above, probate petition stands dismissed.”

12. On a careful perusal of the aforesaid reasoning given by the learned trial Court, this Court has no hesitation in holding that the execution of the Will dated 26.11.2003 has not been satisfactorily proven by the appellant during the course of trial. Apart from the apparent contradiction in the testimony of PW-1 Smt. Sushma Arora and PW-2 Mr. Jagdish Tuteja, observed by the learned Trial Court as to whether or not the appellant was aware of the execution of the Will by his mother, there is a saying in the evidence law that ‘a man can lie but not the circumstances’. There are overwhelming circumstances that clearly demonstrate that there are several unexplained if not suspicious grounds to doubt the genuineness of the will being propounded by the appellant in his favour.

13. First things first, although it is sought to be claimed that the impugned Will was executed by the testatrix on 26.11.2003, which was only claimed to be propounded, if the case of the appellant is believed, on coming to know about the same at the time of sagan ceremony of his nephew on 16.11.2012 and then petition seeking probate of the Will was filed on 19.08.2013, learned trial Court has rightly observed that if PW-1 Smt. Sushma Arora was an attesting witness to the Will dated 26.11.2003 Ex.PW-1/1, it is very unlikely that she would have executed the partition deed dated 12.09.2008 Ex.PW-1/D-1.

14. Likewise, the same inference can also be applied with regard to PW-2 Mr. Jagdish Tuteja since his wife and the sister of the appellant, namely respondent No[1]./Smt. Usha Rani Tuteja was also a signatory and executed the aforesaid partition deed on 22.09.2008. In the contemporary Indian society, it is very unlikely that respondent No.1 did not tell her husband that she was going to execute a partition deed involving her siblings so as to seek 1/6 share in the subject property.

15. That is not the end of story since subsequently, relinquishment deeds were executed by the each of the sisters except for respondent No.2, and if that is the case, again it is very unlikely that the respondent No.1 might have executed the relinquishment deed thereby surrendering her right, title and interest in the subject property in favour of her brother without having knowledge or consent of her husband viz, PW-2 Mr. Jagdish Tuteja, who as claimed to be, was aware of the execution of the impugned will by her mother in law.

16. Learned trial Court rightly relied upon the decision in the case of

17. Further, it would be relevant to refer to the observations of the Supreme Court in the case of Surendra Pal v. Saraswati Arora (Dr.)4, wherein it was held as under: “7. The propounder has to show that the Will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. (See H. Venkatachala lyengar v. B.N. Thimmajamma [AIR 1959 SC 443: 1959 Supp (1) SCR 426: 1959 SCJ 507] and Rani Purnima Devi v. Kumar Khagendra Narayan Dev [AIR 1962 SC 567: (1962) 3 SCR 195:

(1962) 1 SCJ 725] ) In the latter case this Court, after referring to the principles stated in the former case emphasised that where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the court before the Will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. It has been further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will which may be unnatural or unfair or improbable when considered in the light of the relevant circumstances. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the Will had been obtained by fraud or undue influence, a probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind. The observations of the Privy Council in Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga [AIR 1924 PC 28: 80 IC 777: 26 BLR 579] support the above proposition. Mr Ammer Ali observed at p. 33: “It is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the Will on the ground that it was obtained by the exercise of undue influence, excessive persuasion or moral coercion, it lay upon him to establish that case.” In the light of what has been stated if the various requirements of a valid Will are established, then as observed by the Privy Council in Motibai Hormusjee Kanga's case at p. 33: “A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition.” {Bold portions emphasized}

18. In summary, the appellant is failing to satisfy the conscience of this Court in appeal that the impugned will was at all executed on the alleged date 26.11.2003 as per the depositions of the witnesses. It belies common sense and logic that PW-1 Sushma Arora would execute a partition deed on a subsequent date despite knowing that her mother had executed a will in favour of her brother so much so that later she would execute a relinquishment deed in favour of her brother/appellant. Likewise, at the cost of repetition, the same inference could be raised against respondent no. 1 who too executed the above-referred partition deed and relinquishment deed while all the time her husband PW-2 was claimed to be the attesting witness to the impugned will. It is but manifest that in all probabilities, on the non-execution of the relinquishment deed by respondent no. 2 Smt. Laxmi Tiwari, the concerned parties including the appellant fabricated the impugned will to claim exclusive right, title and interest in the subject property.

19. In view of the foregoing discussion, this Court finds that the impugned judgment dated 22.03.2019 passed by the learned trial Court does not suffer from any patent illegality, perversity or incorrect approach in law. The present appeal is bereft of any merits and the same is accordingly dismissed.

20. The pending applications also stand disposed of.

DHARMESH SHARMA, J. MARCH 21, 2025