Full Text
TEST.CAS. 56/2004
JUDGMENT
Through: Mr.Sanjeev Anand & Mr.Vikram Singh, Advs.
Through: Mr.P.K. Moitra and Mr.Pankaj Aggarwal, Advocates for defendants No.2 & 3
1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes G.S.SISTANI, J. (ORAL)
1. Present petition has been filed by the petitioners under Section 276 of the Indian Succession Act, 1925, for grant of probate of the Will dated 25.10.2000 of late Smt. Shakuntala Kapur wife of Dr. Manohar Lal Kapur.
2. The petitioners have extracted details of close relations being the legal heirs of the first degree as per Schedule 1 of the Hindu Succession Act, 1956. The petitioners are the sons of late Smt. Shakuntala Kapur, who died on 31.5.2000[2], she was a permanent resident of New Delhi. Smt. Shakuntala Kapur, by means of her registered Will dated 25.10.2000 has bequeathed her movable and immovable properties as per her Will. Notice was issued to the 2011:DHC:3474 general public by way of publication in The Statesman, New Delhi edition and the overseas edition on 31.01.2005. Notice was also issued to the Chief Revenue Controlling Authority. The valuation report qua the estate of the deceased has also been placed on record. Pursuant to the said notice, objections have been filed by Ms. Malvika Vohra and Mr. Sushobhan Luthra, daughter and son of predeceased daughter of late Smt. Shakuntala Kapur. Dr. Manohar Lal Kapur, husband of deceased Smt. Shakuntala Kapur, despite having been served has not filed any objection to the present petition.
3. Petitioner no.1 i.e. Maj. Ravindra Mohan Kapur examined himself as PW-1. Mr. M.L. Mehra who was an attesting witness of the said will was examined as PW-2 and the clerk from the Office of Subthe petitioner has filed certified copy of the registered Will. Subsequently, during the pendency of the matter, the original Will dated 25.10.2000, which was stated to be in the possession of the husband of the deceased was filed.
4. The witnesses of the petitioner were duly cross-examined by the counsel for the objectors, however, it is pertinent to note that the objectors have not filed any evidence nor they have entered the witness box.
5. PW-1, the petitioner, has filed his evidence by way of affidavit, wherein he has deposed that petitioners are the sons of late Smt. Shakuntala Kapoor, who was permanent resident of Flat No.40, Khan Market, New Delhi and Smt. Shakuntala Kapoor died on 31.5.2002. The original death certificate filed on record has been exhibited as PW-1/1. According to PW-1, late Smt. Shakuntala Kapoor died leaving behind a Registered Will dated 25.10.2000, which was executed by her in the presence of two witnesses. The certified copy of the Will has been exhibited as PW-1/2. During his examination-inchief petitioner, PW-1, identified his signatures at points „A‟ and „B‟ on the affidavit (Exhibit PW-1/A). During cross-examination, PW-1 has deposed that he did not have the original Will in his possession and was not aware in whose possession it was. PW-1 has denied the suggestion that his mother was seriously ill in the month of October, 2000, and has volunteered to say that she was perfectly alright at that time. PW-1 has further deposed in cross-examination that Smt. Shakuntala Kapur was 85 years of age at the time of her death and that she was admitted in Mool Chand Hospital from time to time in the last five years before her death but it was for normal illness and she was not suffering from any serious ailments during her last days. PW-1 denied the suggestion that in the year 2000 his mother, Smt. Shakuntala Kapur, was not having sound disposing mind or that she was not in a position to execute the Will. PW-1 also denied having any medical record of his mother of the last five years of her life and that the suggestion that the Will (Exhibit PW-1/2) is a forged and a fabricated document was denied.
6. The Petitioner also examined Mr. M.L. Mehra, one of the attesting witnesses PW-2. PW-2 in his statement dated 07.11.2006 identified his signatures on his affidavit by way of evidence at points A and B. PW-2 has deposed that the Will was executed by late Smt. Shakuntala Kapoor in his presence and in the presence of Mr. H.L. Gugnani and further he and Mr. H.L. Gugnani appended their signatures on the said Will as an attesting witnesses in the presence of late Smt. Shakuntala Kapoor and in the presence of one another. This witness has also identified the signatures of late Smt. Shakuntala Kapoor, Mr. H.L. Gugnani and his own signatures on the said Will, exhibited as PW-1/2. PW-2 further deposed that he and Mr. H.L. Gugnani accompanied late Smt. Shakuntala Kapoor and her husband, Mr. Manohar Lal Kapoor, to the office of Sub-Registrar, New Delhi, for the purposes of the said Will and presented themselves before the Sub-Registrar with regard to the registration of the said Will.
7. During cross-examination PW-2 deposed that he had close family ties with the Smt.Shakuntala Kapur and he met her often, as he had known her family since pre-partition days, and that he was not aware as to whether Smt.Shakuntala Kapur was bed-ridden during the last 4 – 5 years of her life. PW-2, further denied the suggestion that during the last years of her life Smt.Shakuntala Kapur was physically incapacitated and was not keeping good mental health and further denied the suggestion that she was admitted to Mulchand Hospital during the last years of her life at least on six occasions. PW-2 volunteered to state that when he met her even after a gap, he found her to be mentally fit and she was not physically incapacitated and that Dr.Manohar Lal Kapur, husband of the deceased testator had requested him to be a witness of the Will. The witness also denied the suggestion that Dr.Manohar Lal Kapur was suffering from forgetfulness for the last 8 – 10 years. The witness clearly deposed that the Will was executed for the first time in the office of the Sub-Registrar and he had signed only one Will. The witness further stated that at the time of execution of the Will, Smt. Shakuntala Kapur, Dr.Manohar Lal Kapur and Sh.Harbans Lal Gugnani were also present and all of them had gone to the office of Sub-Registrar.
8. Mr. Mehra, PW-2 has also categorically denied the suggestion that signatures of the testator were obtained on the blank paper and thereafter the matter had been typed. On being confronted with the original registered Will, the witness admitted his signatures at
┌───────────────────────────────────────────────────────────────────────────────┐ │ serial No.2 of the witnesses on the last page of the Will, when the │ │ same was exhibited (Exhibit PW-2/DX). The witness also denied the │ │ suggestion that he did not sign in the presence of the testator or │ │ that the testator did not sign in his presence. He volunteered to │ │ state that all the witnesses had signed on the Will in the presence of │ │ Smt.Shakuntala Kapur and she had signed the Will in the presence │ │ of Sub-Registrar. He categorically denied the suggestion that the │ │ Will was not executed before the Sub-Registrar, but it was later on │ │ managed to be registered in collusion with him and the sons of the │ │ testator. │ └───────────────────────────────────────────────────────────────────────────────┘
10. The petitioner has also summoned record keeper from the office of Sub-Registrar –V, Mehrauli, New Delhi. Mr.Sher Singh, Record Keeper, who appeared from Sub-Registrar –V, Mehrauli, deposed as under: “I have brought the summoned record which is the original Will of Smt.Shakuntala Kapur, w/o.Dr.Manohar Lal Kapur, R/o. plot No.40, Khan Market, New Delhi registered vide registration no.6898 book no.3 Volume no.894 on pages 134 to 137 registered on 25th October, 2000. Certified copy of the said Will is Ex.PW-1/2 and has been issued from our office.”
11. Mr.Sanjeev Anand, counsel for the petitioner submits that based on the evidence the petitioner has been able to prove the execution of the Will beyond any shadow of doubt. Petitioner no.1 in his examination in chief has duly proved the death certificate of the deceased, testator. It is submitted that during the crossexamination he has denied the suggestion that his mother was seriously ill in the year 2000 and the witness had stated that in fact she was perfectly alright at that time. He has further stated in the cross-examination that his mother was not suffering from any serious ailment during her last days. He has refuted the suggestion that in the year 2000 his mother was not in sound disposing mind and was not in a position to execute the Will.
12. Mr.Anand, counsel for the petitioner further submits that PW-2, Mr.M.L. Mehra has categorically deposed that the testator signed in the presence of the witnesses and the witnesses signed in his presence. Mr.Anand, further submits that both PW-1 and PW-2 have categorically stated that the testator was in sound disposing mind and she was not suffering from any serious ailment and thus the ingredients of Section 63 of the Indian Succession Act, 1925 and section 68 of the Indian Evidence Act, 1872 have been duly satisfied.
13. Mr.Moitra, counsel for the respondents/ objectors has opposed the petition and has argued that the Will has been executed in extremely suspicious circumstances. He also submits that petitioner did not produce the original Will on record at the first instance. Subsequently the original Will was filed on record. On comparing the original Will with the certified copy it was noticed with the naked eye that the signatures of the Sub-Registrar do not tally with each other. Mr. Moitra vehemently argued that there is also a glaring difference between the two Wills and the order in which the witnesses have signed both the Wills is different. It is contended that the certified copy should be a replica of the original Will. He further submits that both the Wills are not identical while on the certified copy of the Will there is no date, however, the original Will bears the date of 25.10.2000. He also submits that PW-2 is an unreliable witness and his evidence cannot be relied upon, as at one stage the witness has stated that he has signed only once whereas in the later part of the cross-examination he admitted the signatures on both the Wills. According to counsel for the Objector, this makes the evidence of the witness extremely unreliable.
14. In support of his arguments, Mr.Sanjeev Anand, has relied upon Savithri and Ors. Vs. Karthyayani Amma & Ors. (2007) 11 SCC 621 paragraphs 16 to 23, which are reproduced below: 16*. It is not correct to contend that DW 2 could not have been the attesting witness. He in his deposition categorically stated that he had seen the will being read over to the propounder. The witnesses and he had seen Sankaran Nair putting his signature on the will. Sankaran Nair had also seen the witnesses putting their signatures. This satisfies the requirements of the provisions of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. (See Apoline D' Souza v. John D' Souza[2].)
17. The legal requirements in terms of the said provisions are now well settled. A will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine.
18. We may, however, notice that according to the appellants themselves, the signature of the testator on the will was obtained under undue influence or coercion. The onus to prove the same was on them. They have failed to do so. If the propounder proves that the will was signed by the testator and he at the relevant time was in sound disposing state of mind and understood the nature and effect of disposition, the onus stands discharged. For the aforementioned purpose the background fact of the attending circumstances may also be taken into consideration. (See B. Venkatamuni v. C.J. Ayodhya Ram Singh[3].)
19. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao[4] this Court held: (SCC p. 447, paras 32-33) “32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act postulates the mode and manner of which proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedage[5] and Sridevi v. Jayaraja Shetty[6].) Subject to above, proof of a will does not ordinarily differ from that of proving any other document.”
20. Therein, this Court also took into consideration the decision of this Court in H. Venkatachala Iyengar[1], wherein the following circumstances were held to be relevant for determination of the existence of the suspicious circumstances: (Mrudula Jyoti Rao case[4], SCC pp. 447-48, para 34) “34. … (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.”
21. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing. We are not unmindful of the fact that the court must satisfy its conscience before its genuineness is accepted. But what is necessary therefor, is a rational approach.
22. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a will in their favour, no exception thereto can be taken. Even then, something was left for the appellant.
23. In Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande[7] this Court held: (SCC pp. 543-44, para 8) “8. A will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring.”
15. Mr. Anand has also relied upon Madhukar D. Shende Vs. Tarabai Aba Shedage AIR 2002 SC 637 and more particularly paragraphs 8 and 9, which read as under:
8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the jury in R. v. Hodge, 1838, 2 Lewis CC 227 may be apposite to some extent: “The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.” The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict — positive or negative.
9. It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of “not proved” merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance.
16. Mr.Moitra, counsel for the objectors has relied upon H.Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors. AIR 1959 SC 443, in support of his plea that the propounder of the Will has to prove the due and valid execution of the Will and if there are suspicious circumstances surrounding in execution of the Will, the propounder must dispel any suspicion in the mind of the court and dispel the same by means of cogent and satisfactory evidence. He submits that the petitioner being the propounder of the Will has failed to discharge the onus.
17. I have heard counsel for the parties and carefully perused the evidence on record as also the original and certified copy of the Will. It would be useful to reproduce section 63 of the Indian Succession Act, 1925 and section 68 of the Indian Evidence Act, 1872:
18. It may be noticed that except for filing the objections the objectors have neither filed their affidavits by way of evidence nor have they entered in the witness box. The objectors have failed to lead any evidence in support of the objections which have been raised by them. However, the arguments raised by the counsel for the objectors have been considered by this Court. The arguments of the counsel for the Objectors can be summarized as under: The Will has been executed in suspicious circumstances which are evident from: (a) the signatures of the Sub-Registrar on the original Will and on the certified copy of the Will do not tally; (b) the signatures of the attesting witnesses are not in the same order in the original Will and in the certified copy of the Will;
(c) the evidence of PW-2 is unreliable as there are contradictions and both the Wills are not identical, as on the one of the Wills no date has been mentioned, whereas on the other date has been mentioned; and
(d) that the certified copy should be the replica of the
19. Mr.Anand, counsel for the petitioner in order to show that the petitioner has satisfied the requirement of section 63 of the Indian Succession Act and section 68 of the Indian Evidence Act, has drawn attention of this court to the original Will which has been placed on record. The original Will shows that it has been duly signed by the testator and two witnesses. The petition is also supported by the affidavit of one of the attesting witnesses. The evidence of PW-2, one of the attesting wistnesses, shows that the witnesses have signed in the presence of the testator and the testator has signed in their presence. The evidence also establishes that the testator was in good health and she had full control over her mind and body and that she was in sound disposing mind. In view thereof, I am satisfied that the petitioner has been able to discharge the onus and has satisfied the requirements of provisions of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
20. I have carefully examined the original Will and the certified copy of the Will. The submission made by counsel for the objector have no force. On perusing with the Wills with the naked eye it is evident that the certified copy is a photocopy of the original Will and the typing on both the Wills - the font, typing, the end of the page and end of each of paragraph - are identical. The contents of the Wills are also identical. While the original Will bears the signatures of the Sub-Registrar, the certified copy does not bear the signatures of the Sub-Registrar, but the word „Sd/-„ (signed) has been scrolled and thus, it cannot be said that the signatures of the Sub-Registrar vary in both the Wills. The certified copy has not been signed at all. The objection so taken is baseless and unfounded. There is no doubt that the order of signing of the witnesses in both the Wills is not the same. The explanation rendered by Mr.Anand, counsel for the petitioner is cogent and plausible and is corroborated by the evidence of PW-2, who has stated that both the Wills were signed in the presence of Sub-Registrar, hence, merely because the witnesses have not signed in the same order would not make the Will invalid or fabricated, especially in view of the evidence of PW-2, which is truthful and reliable. The evidence of the witnesses is duly supported by the evidence of PW-3, record keeper from the office of Sub-Registrar. No doubt the date of 25.10.2000 is not mentioned on the certified copy of the Will, but having regard to the fact that the original Will bears the date of 25.10.2000 and also the fact that the Will was registered on the same date, non appearance of the date on the certified copy has no bearing in the present matter.
21. The contradictions pointed out by counsel for the Objectors does not go to the root of the matter, as PW-2 who was more than 80 years of age at the time of recording of his evidence has clearly stated that he had signed only one Will and when he was shown the original Will and the certified copy, he has rightly and truthfully identified the signatures on both the Wills.
22. It is clear from the facts noted above and evidence on record that PW-2 Mr. Mehra had correctly deposed that he had signed only one will of late Smt. Shakuntla Kapur dated 25.10.2000 as a consequence of which neither does the objection raised by the objector regarding the suspicious circumstances surrounding the certified copy of the Will go the root of the matter, nor can it be entertained by this court.
23. While there is no quarrel to the proposition laid down by the judgment relied upon by counsel for the Objectors, the same is not applicable to the facts of this case, as the propounder of the Will has satisfied the Court about the genuineness of the Will and has clearly discharged his onus. This court cannot lose track of the fact that the husband of the testator was alive at the time when the probate petition was filed. Despite service, he did not oppose the petition nor he filed any objection and in fact PW-2 clearly deposed that he was present at the time when testator had signed the Will and has further clearly stated in his evidence that at his request the husband of the testator had agreed to sign as witness.
24. Mr. Moitra has been unable to substantiate his objections that the Will has been executed in suspicious circumstances. He is also unable to show that testator was not in a fit state of mind at the time of execution of the said Will or that the deposition appears to be unnatural or wholly unfair in the light of present circumstances no material has been placed on record to show that propounders had taken a prominent part in the execution of the Will. Merely because the objector has been deprived of a share by itself cannot lead to the conclusion that there exists any suspicious circumstances. The objectors had neither stepped into the witness box, nor led any evidence, nor did husband of the testator entered the witness box to refute the claim of the petitioner. Resultantly, the objections of the objectors are dismissed.
25. In view of the aforestated testimony it stands proved that late Smt. Shakuntala Kapur executed Will dated 25.10.2000, which was her last Will. Probate in terms of the said Will is hereby granted in favour of the petitioner. Valuation report is accepted. Petitioner shall file necessary court fee. On filing the court fee probate be granted to the petitioner.
26. Petition is accordingly disposed of. G.S.SISTANI,J JULY 12, 2011 „ssn'