Rakesh Kumar Ghei & Anr. v. State & Ors.

16. The petitioners in support of the present petition, examined the witness to the Will, Mr.H.L. Bery, as PW-1. He stated that the Will was signed by the Testator in his presence and in the presence of the other witness, Mr.Om Prakash, after understanding its contents. Mr.H.L. Bery stated that he and Mr.Om Prakash signed the Will in the presence of the Testator. He further states that the Testator was in good physical and mental health when he signed the Will. He stated that the Will was registered in the office of Sub-Registrar-IV, Delhi on 30.03.1994.

17. In his cross-examination by the respondent nos.[2] to 5, he stated that he knew the Testator since 1946 as both of them were from Lahore and knew each other’s family before partition. He stated that he used to stay about a kilometre away from the house of the Testator and used to meet him daily during morning walks. He, however, admitted that he did not know the wife of the Testator. He also admitted that he did not attend the cremation of the Testator. He stated that the Testator was his colleague at New Indian Assurance Company where they both used to work. He further stated that he went to the office of the Sub-Registrar at the asking of the Testator. He also stated that he enquired from the Testator why he was executing a Will only in favour of one of his sons and his wife when he has another son also, and in answer, the Testator told him that his other son was well settled in foreign country. He stated that he had not seen the petitioner no.1 when he visited the office of the Sub-Registrar. He further stated that he does not recollect if the wife of the Testator was dead or alive at the time of the execution of the Will.

18. The petitioner no.1 examined himself as PW-1. He stated that the legal heirs of the Testator were well aware of the execution of the Will by the Testator. He reiterated the contents of the petition and the reply to the objection filed by him.

19. In his cross-examination, he stated that the Testator had told all the legal heirs, that is, petitioner no.1 and respondent nos.[2] to 5 about the execution of the Will. He further stated that they found the Will at the time of the death of the Testator, when they opened the closet of the Testator. He further stated that when the Testator had gone to USA to meet the respondent no.5, he was ill-treated by him. He also stated that in 2017, he contacted respondent nos.[2] to 5 on telephone asking for the NOC; while respondent no.2 refused to sign the NOC, the other respondents sought time by saying ‘Dekh te hain’. After taking time, the other respondents also refused to sign the NOC.

20. The petitioner also examined Mr.Gopal Dutt, Record Keeper, Sub Registrar-IV, Seelam Pur, Delhi as PW-3. He stated that Ex.P-8 is registered with his office at No.10266 in Book III, Volume No. 947 on pages 101 to 102. He denied the suggestion that Ex.P-8 is not similar to the Will that has been registered in his office.

21. Ms.S.P. Sisodia, Notary Public was examined by the petitioners as PW-4. She states that she had attested the affidavit of PW-1 Mr.H.L. Bery and produced the relevant entry in this regard in her register. Her testimony was relevant to the case only because it is the case of the respondent nos.[2] to 5 that she had attested the affidavit of PW-1 Mr.H.L. Bery without being identified by any counsel. This plea was supported by respondent no.2 by producing a photocopy of the affidavit of Mr.H.L. Bery, purportedly received by them as advance service thereof from the learned counsel for the petitioners (Ex.PW4/DX-1).

22. Respondent nos.[2] to 5 also examined themselves as witnesses in the case.

23. Respondent no.2 in her evidence by way of affidavit (Ex.R2W1/X), inter alia, stated that the Testator was having old age problems like, hard of hearing, not understanding properly at times, not recognising persons and even not understanding the conversions properly, and had become feeble in health and had difficulty in walking. She stated that there were frequent fights between the Testator and the petitioners, especially petitioner no.2, and respondent no.4 was called very often to mediate in the same. She stated that hence, the Will dated 30.03.1994 is not a genuine Will and could not have been executed by the Testator without any force, collusion or undue influence by the petitioners.

24. She states that the petitioners and their children never had any love and affection for the Testator and never looked after the Testator. They had total control over the basic necessities of the Testator and used to deprive him of the same also. They confined the Testator to one room and rest of the locks and keys of the subject property were under their full control. She states that the petitioners, who were living in the house of the Testator at that time, had taken undue advantage of the depressed and old age condition of the Testator, had manipulated him and influenced the mind of the Testator ‘by stating that all the legal heirs of the Testator were well settled’ and got the alleged Will dated 30.03.1994 executed in their favour, disinheriting all the legal heirs of the Testator deliberately.

25. She stated that the petitioners were also well settled with the petitioner no.2 having his business in the name and style of ‘Ghei Aluminium Fabricators’ and petitioner no.2 had a property at Madhu Vihar, Delhi.

26. She stated that the petitioners themselves are the sole beneficiaries under the Will dated 30.03.1994 and have got the Will prepared themselves and have taken a prominent part in the execution of the Will to the exclusion of respondent nos.[2] to 5 from the benefits of estate of the Testator.

27. She further stated that the Will is surrounded by suspicious circumstances as the same is totally one-sided, bequeathing all the immovable and movable property to the younger son, that is, petitioner no.1, and his wife, that is, petitioner no.2, while leaving out all the other legal heirs.

28. She states that the Will remained in the custody of the petitioners for long time and the petition for Probate/Letter of Administration has been filed after a period of 12 years without assigning any reason for such delay. She states that thus, the intention of the petitioners is mala fide as they wanted to deprive the other legal heirs of their rights to the property of the Testator.

29. She states that Will dated 30.03.1994 is vague as it refers only to the residential house without mentioning the details of other assets of the Testator, which are cash, savings bank accounts, post office accounts, jewellery, etc. She states that this also makes the Will suspicious and shows that the mind of the Testator was not free to bequeath all his assets.

30. Vaguely she states that the Will is a fabricated document. Importantly, she states as under:- “14) That at the time of the death of the testator both the petitioners and respondent no. 5 were in USA and the last rites were performed by the daughters i.e. the deponent & respondent no's 3 & 4 at their own expenses. That after the death of the testator the petitioners stayed in India to get all the assets transferred in their names.”

31. What is also important to note here is that in her crossexamination, respondent no.2 (R2W[1]) admitted that her sisters had also told her about the NOC that was taken by the petitioner no.1 from them. She also admitted that she had not made any complaint with respect to the NOC given by her. She admitted that she used to read a document before signing it. She also admitted that she had taken no steps or lodged any complaint against the petitioner no.1 on coming to know of the Will in the year 1994. She admitted that she had never asked for the share of the suit property from the petitioner no.1, however, added that the petitioner no.1 had himself told her that he would give her share in the subject property to her.

32. She also admitted that she had not filed any application with the MCD seeking cancellation of the mutation of the subject property in favour of petitioner no.1.

33. Respondent no.3 examined herself as R3W[1]. She filed her evidence by way of affidavit (R3W1/X), making identical statements like the respondent no.2 had made in her affidavit of evidence.

34. Her affidavit of NOC executed by her in 2007 was exhibited as Ex.P[5]. Like respondent no.2, for her affidavit of NOC of 2007, while admitting her signatures thereon, she stated that she had signed on the blank paper. She, however, admitted that she usually signs a document after reading its contents. She also admitted that she had signed the said document as the petitioner no.1 had come to her to say that he needed the same, in order to mutate the property in his name in the MCD records. She admitted that the property was mutated in the name of petitioner no.1 and he used to pay the house tax. She also admitted that she had told her husband about the affidavit of NOC on the same day of its execution. She also admitted that she had never demanded her share in the property. She admitted that no complaint was lodged by her or by her husband to the police about the signing of any blank paper in the year 2007. She admitted that she had neither paid any house tax nor any electricity/water bills for the suit property. She stated that she came to know of the Will of the Testator for the first time when petitioner no.1 came to obtain the NOC from her.

35. She was confronted with various photographs to show that the Testator was in good health and had been travelling to various places like Kedarnath, Manali and Badrinath in the year 1992-94. She was also confronted with photographs- Ex.R5W1/DX[1] and R5W2/DX[2], with suggestions that these photographs were taken on the date the Testator had died while he was attending a marriage function and was seen dancing in the photographs. She stated that as she had not attended the said function, she could not state anything about the photographs.

36. Respondent no.4 also examined herself as R4W[1]. She also filed her evidence by way of affidavit (Ex.R4W1/X), which again was on the similar lines as the affidavit of respondent no.2.

37. In the said affidavit, as far as the NOC of 2007 (Ex.PW[4]) is concerned, respondent no.4 also stated that she signed on blank papers at the asking of the petitioner no.1. She admitted in her crossexamination that the Testator would visit her after coming back from U.S.A., either on his motorbike or three-wheeler (autorickshaw). She stated that the Testator used to ride the motorcycle except for the last two years before his death. She also stated that the Testator had travelled by autorickshaw and attended the wedding alone on the day of his death. She also admitted that the Testator had attended the marriage of her children in the year 2000 and 2002, as also the marriage of the children of respondent no.3, which was before the marriage of her own children. She stated that she had no knowledge if the Testator had visited Mussoorie in the year 1992, Hiddimba Temple, Manali in the year 1992, and Badrinath in the year 1994. She admitted that on the date of his death, the Testator attended the wedding of grandson of her uncle (mamaji). She stated that she used to visit the Testator once in two months. She stated that she did not know whether the Testator used to go for morning walk daily or attended any yoga classes or not.

38. She also admitted that she had never demanded any share in the subject property after 2007. She also stated that she had not lodged any complaint with the MCD seeking cancellation of the mutation in favour of the petitioner no.1.

39. Respondent no.5 examined himself as R5W[1].

40. As far as the NOC executed by him in the year 2007 admitting to the Will of the Testator is concerned, in his evidence by way of affidavit (Ex.R5W1/X), he states as under:- “17) That the deponent had no knowledge of the Will dated 30/03/1994 during the life time of the testator as the same was kept as complete secret from him. That the deponent came to know of the alleged Will dated 30/03/1994 only when the petitioners approached him for giving NOC for MCD in their favor in the year 2007 and not in 2017. That the affidavit Exhibited P-7 was executed by the deponent on the assurance/commitment given by the petitioners that he will be paid his due share amounting to 20% of full share in the property. That no NOC has been demanded by the petitioners from the deponent in the year 2017. That the petitioners have taken the plea to come within the ambit of limitation. That no documentary evidence have been filed by the petitioners in this regard. Hence, the present probate petition is barred by limitation and deserves to be dismissed outrightly. That the petitioners now have mala fide intentions and want to usurp the share of the deponent in the property and want to deny the deponent of his legal right over the same. That the petitioners have now backed out of their commitment of giving the deponent his 20% due share in the said property.”

41. In his cross-examination, he further stated as under:- “Q13. Is it correct that you have given a NOC about the Will dated 30.03.1994 to petitioner no.1?

42. As far as the photographs, including of the day of the death of the Testator (Ex.R5W1/DX[1] and R5W1/DX[2]), he stated as under:- “At this stage, witness is shown two photographs and following question is asked. Q12. Can you recognize your father in these pictures?

The documents are exhibited as Ex.R5W1/DX-1, and Ex.R5W1/DX-2. Q13. I put it to you that these photographs are of the marriage function attended by your father on the date when he died. What do you have to say?

43. The respondents also examined Shri Ashok Arora, brother-inlaw of respondent no.5, as RW[6]; Shri Sunder Lal, Advocate (RW[7]); Shri Rakesh ND, Advocate (RW[8]); and Shri OP Joshi, ASO, Property Tax Department, Shahdara South Zone, MCD (RW[9]). Their testimony is not relevant to the dispute at hand to be adjudicated and, therefore, need not be detailed in this judgment. Submissions by the learned counsel for the petitioners

44. The learned counsel for the petitioner submits that the Will (Ex.P[8]) has been duly proved in accordance with Section 68 of the Indian Evidence Act, 1872, by producing the attesting witness thereof, Mr.H.L. Bery (PW[1]). He has deposed about the Will being executed by the Testator in his presence as also the presence of other attesting witness, with both of them also signing the Will at the same time and in presence of the Testator, thereby meeting the requirements of Section 63 of the Indian Succession Act, 1925. He submits that PW-1 also withstood the cross-examination of the respondents, who could not cast any doubt on his testimony.

45. He submits that though respondent nos.[2] to 4 have set up a case that they had executed the NOC in the year 2007 by signing blank papers, they also admit that they never signed any blank papers. They also admitted that they had discussed about the NOC with each other and had never filed any complaint for any blank paper having been got signed from them by the petitioner no.1. They also admit that they knew about the mutation of the property in favour of petitioner no.1 and never made any complaint for the same.

46. He further submits that as far as respondent no.5 is concerned, he admits that he had signed the NOC in similar terms as signed by respondent nos.[2] to 4 and had even got it attested in U.S.A. He, however, falsely set up a case that the same was signed by him on a purported promise of petitioner no.1 that he shall be given a 20% share in the subject property. He, however, admitted that he had never demanded the said share from the petitioner no.1 till the filing of the present Probate Petition. He submits that, therefore, the denial of the Will by the respondents is totally mala fide and liable to be rejected.

47. He submits that though the respondents tried to set up a case that the Testator was not keeping good health, they have not produced any document in support of this assertion. In fact, the respondents admit that the Testator was in good health right till his death.

48. He submits that there are no suspicious circumstances surrounding the Will and, therefore, the present petition deserves to be allowed. Submissions by the learned counsel for respondent nos.[2] to 5

49. The learned counsel for the respondent nos.[2] to 5, on the other hand, submits that there are suspicious circumstances which have not been explained by the petitioners. She submits that there is no reason for the Testator to have excluded respondent nos.[2] to 5 from his estate. She submits that respondent no.5 had taken good care of the Testator when the Testator visited him in U.S.A. He also enjoyed good relationship with respondent nos.[2] to 4. As far as the purported reason that the other legal heirs, that is, respondent nos.[2] to 5 are well settled in life is concerned, she submits that even petitioner no.2 was well settled as he had a good business and even had a property, as was proved by the documents produced by the respondent in their evidence. She submits that this would be an important circumstance raising suspicion on the Will.

50. She submits that the petitioner no.1 had taken a major role in the execution of the Will. He not only is the propounder thereof and the only one who produced the Will, but is also the sole beneficiary. This, itself, is sufficient to raise suspicion on the authenticity of the Will.

51. She submits that the testimony of PW1- Mr.H.L. Bery cannot be accepted as he is not a natural witness to the Will. Though he tries to portray that he knew the Testator, he admits that he does not know the wife of the Testator or his children nor did he attend the funeral of the Testator. She submits that PW[1] has, therefore, been falsely set up as a witness to the alleged Will of the Testator.

52. She reiterates that as far as the NOC(s) of respondent nos.[2] to 4 are concerned, they had signed on blank papers at the asking of the petitioner no.1 and on an assurance that he needed them for carrying out the mutation of the property in his favour, while assuring them that he shall give their share in the property to them. She submits that the sisters believed their brother and signed the blank papers, which were later misused by the petitioner no.1 to create the NOC(s).

53. She submits that the petitioner no.1 has also not explained how he had the possession of the original NOC(s), though he is supposed to have submitted the same with the MCD.

54. She submits that as far as the NOC executed by respondent no.5 is concerned, respondent no.5 has explained that he signed the same on the assurance of petitioner no.1 that he would be given his 20% share in the property of the Testator.

55. Placing reliance on the judgments of the Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma and Others, 1958 SCC OnLine SC 31; Gurdial Kaur and Others v. Kartar Kaur and Others, (1998) 4 SCC 384; Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Another, (2006) 13 SCC 433; Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through Legal Representatives and Others, (2015) 8 SCC 615; Ramesh Verma (Dead) Through Legal Representatives v. Lajesh Saxena (Dead) By Legal Representatives and Another, (2017) 1 SCC 257; and, Kavita Kanwar v. Pamela Mehta and Others, (2021) 11 SCC 209, she submits that as the petitioners have failed to prove the due execution of the Will, and the Will is even otherwise surrounded by suspicious circumstances, the present petition deserves to be rejected.

56. She submits that the present petition is barred by limitation as it has been filed almost 12 years after the death of the Testator. Analysis and findings

57. I have considered the submissions made by the learned counsels for the parties.

58. In H. Venkatachala Iyengar (supra), the Supreme Court explained in detail, the test to examine the proof of a Will by the propounder thereof. It was highlighted that to start with, the propounder of the Will will have to satisfy the Court that the Will was signed by the Testator; and that the Testator at the relevant time was in a sound and disposing state of mind and understood the nature and effect of the dispositions and put his signature to the document of his own free will. The special test of examining an attesting witness under Section 68 of the Indian Evidence Act would also need to be complied by the propounder of the Will. The Court further held that the propounder of the Will would also have to remove doubts over any suspicious circumstances surrounding the Will. It was held that if it is shown that the propounder had taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will. The propounder of the Will would be required to remove the said suspicion by clear and satisfactory evidence. I may quote from the judgment as under:-

is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word “conscience” in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson “where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth”. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.”

59. In Gurdial Kaur and Others (supra), the Supreme Court reiterated that if there is a suspicious circumstance about the execution of the Will, it is the duty of the person seeking declaration about the validity of the Will, to dispel such suspicious circumstances. Mere fact that the Will is registered will not by itself be sufficient to dispel all suspicions regarding the validity of the Will, where such suspicion exists. I may quote from the judgment as under:-

the propounder was unable to dispel the suspicious circumstances which surrounded the question of valid execution and attestation of the Will, no letters of administration in favour of the propounder could be granted.

4. The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance. As in the facts and circumstances of the case, the court of appeal below did not accept the valid execution of the Will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the court of appeal below has also been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs.”

60. The above principles have been reiterated by the Supreme Court in Jagdish Chand Sharma (supra), Ramesh Verma (Dead) Through Legal Representatives (supra), and in Kavita Kanwar (supra).

61. In Shivakumar & Ors. v. Sharanabasappa & Ors., 2021 (11) SCC 277, the Supreme Court summarized the principles governing the adjudicatory process concerning proof of Will, as follow:- “12.1. Ordinarily, a will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon.

12.2. Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.

12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.

12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion et cetera 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 give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.

12.6. A circumstance is “suspicious” when it is not normal or is “not normally expected in a normal situation or is not expected of a normal person”. As put by this Court, the suspicious features must be “real, germane and valid” and not merely the “fantasy of the doubting mind”.

12.7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.

12.8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will?

12.9. In the ultimate analysis, where the execution of a will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will.”

62. From the above, it would be apparent that while the propounder of the Will has to remove any suspicion on the Will, such suspicion must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind’.

63. In Uma Devi Nambiar and Others v. T.C. Sidhan (Dead), (2004) 2 SCC 321, the Supreme Court held that a Will is normally executed to alter the ordinary mode of succession. Therefore, 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. I may quote from the judgment as under:-

suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. (See Pushpavathi v. Chandraraja Kadamba.) In Rabindra Nath Mukherjee v. Panchanan Banerjee it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly.”

64. Applying the above test to the facts of the present case, it is noted that the petitioners, in conformity with the test laid down in Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act, have been able to prove the due execution of the Will (Ex.P-8) by producing PW1-Shri H.L. Bery. PW[1] comes out to be the natural witness to the Will. He not only was the colleague of the Testator, working in the same office, but is also his neighbour and his companion in morning walks. Merely because he does not know the wife of the Testator or did not attend the cremation of the Testator, it would not be sufficient to discredit him as a witness, especially taking into account the other evidence led by the parties.

65. On the sound disposing mind of the Testator and his free will in executing the Will, again the testimony of PW[1] meets the test. He not only speaks about the sound disposing mind of the Testator, but also about how he was contacted by the Testator for standing as a witness to the Will, as also for accompanying him to get the Will registered.

66. In addition to the above, the respondents have vaguely stated that the Testator was suffering from old age problems like being hard of hearing, not apprehending properly at times, and not recognizing persons. They do not state that this was his condition in the year 1994, when the Will was executed. They have also not produced any medical documents in support of their vague assertions.

67. On the other hand, R4W[1] in her cross-examination, herself states that the Testator, till around two years before his death, which was 12 years after the execution of the Will, used to drive his own scooter. R4W[1] also admitted that on the date of his death, the Testator had gone to attend a wedding on his own and all alone. This itself shows that the Testator was also in good disposing mind not only on the date of the execution of the Will, but even thereafter, right till his death.

68. Mere fact that the propounders of the Will, that is, the petitioners, are the sole beneficiary therein, cannot itself be suspicious circumstance, warranting the rejection of the present petition. Respondent nos.[2] to 5 have admitted that they came to know of the Will way back in the year 2007, that is, almost immediately after the death of the Testator when the petitioner no.1 approached them for obtaining their NOC. Though the respondent nos.[2] to 4 claim that they signed blank papers at the asking of the petitioner no.1, I find the said story to be not worthy of acceptance. They not only admit that they do not sign any blank documents, but also state that they discussed about the same with each other and also with their respective husbands. They further admit that they knew of the mutation of the property in the favour of petitioner no.1 and in spite of the same, did not raise any protest till the filing of the present petition in the year 2018, that is, for a period of more than 11 years.

69. Respondent no.5 could not have taken the stand that he had signed blank papers, as the NOC/affidavit was duly attested from U.S.A. It was in the same terms as the one executed by respondent nos.[2] to 4. Respondent no.5, therefore, came out with a story/explanation that he executed the NOC on the asking of the petitioner no.1 and at his assurance that he shall give 20% share in the property of the Testator to respondent no.5. He, however, also admitted that for a period of almost 11 years till the filing of the present petition, he never demanded this share in the property from the petitioners.

70. Ex.PW[6], that is, the affidavit, that is now admitted to have been executed by respondent no.2, and on similar lines by respondent nos.[3] to 5 as well, reads as under:- “AFFIDAVIT I, KIRAN DHAMIJA D/o LATE VAS DEV GHEI RESIDENT OF 189, RAM VIHAR DELHI-92 do hereby solemnly affirm and declare as under:

1. That my father SHRI VAS DEV GHEI was the owner of PROPERTY NO. A-20, MEASURING AREA 192 SQ.YDS. (APPROX), SITUATED AT PREET VIHAR, DELHI-92

2. That my father SHRI VAS DEV GHEI expired on 5/7/2006 and mother has already expired on 6/11/1990.g.

3. That my father SHRI VAS DEV GHEI in his lifetime executed a Will Deed of the above said property in favour of my brother Shri Rakesh Kumar Ghei and his wife Smt. Sunita Ghei on 30/3/1993 duly registered as Document No.10266 Book No. 3 Volume NO. 947 on pages 101-102 dated 30/3/1994 in the Office of SR-IV-Delhi.

4. That the above said Will is Genuine and I have NO OBECTION whatsoever if the above said Property is mutated in the name of SHRI RAKESH KUMAR GHEI & SMT.

5. That these are my true statements.”

71. Clearly, therefore, respondent nos.[2] to 5 not only knew of the Will of the Testator but also accepted the same till they finally turned turtle in the year 2017 when they refused to sign an NOC to the petitioner no.1 selling the property, forcing the petitioners to file the present Probate Petition.

72. In the above circumstances, it must be held that the petitioners have duly met the test laid down by the Supreme Court in the above referred judgments, by not only proving the Will, its due execution by the Testator and by the attesting witness, but also showing that the Testator was in a sound disposing mind and executed the Will out of his own free will and volition and also removing any suspicion to the Will, though there was none, that was cast by respondent nos.[2] to 5.

73. Mere fact that the petitioner no. 1 was equally well settled in life and therefore, there was no special reason for the Testator to have bequeathed the property only in favour of the petitioner no. 1 and his wife, cannot also be a ground to disbelieve the Will. It is proved on record that the respondent nos. 2 to 4 were happily married, while the respondent no. 5 was in USA. It was therefore, not unnatural for the Testator to have left the property, where the petitioner no. 1 was admittedly residing with him, in favour of the petitioner no. 1.

74. As far as the objection of the present petition being barred by limitation is concerned, the Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur and Others, (2008) 8 SCC 463, while holding that Article 137 of the Limitation Act, 1963 shall be applicable to the petition for grant of Letter of Administration, further held that in such proceedings, the application merely seeks recognition from the Court to perform a duty, and because of the nature of the proceedings, it is a continuing right, which can be exercised any time after the death of the deceased so long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. It would apply and accrue when it becomes necessary to so apply for grant of Letter of Administration and not necessarily within three years from the date of the death of the deceased.

75. In the present case, the petitioners have asserted and proved that the necessity to apply for the Probate/Letter of Administration arose only when the respondents refused to sign the NOC required by the petitioner for sale of the property, in the year 2017. Though the respondents have contended that they were never approached by the petitioners in the year 2017 for executing an NOC, as noted hereinabove, they have admitted that they never challenged the Will in spite of their knowledge of the same and in spite of the fact that the petitioners, relying upon the Will, had taken mutation of the property in their favour and were enjoying the subject property. The stand of the petitioners that cause of action for filing of the present petition arose in 2019, therefore, cannot be doubted.

76. It is also well settled that in Delhi, it is not necessary to obtain the Probate of the Will. Reference in this regard is made to the judgment of the Supreme Court in Kanta Yadav v. Om Prakash Yadav & Ors., (2020) 14 SCC 102. Therefore, it was not necessary for the petitioners to apply for grant of Letters of Administration until the respondent nos. 2 to 5 refused to give their NOC for the sale of the subject property by the petitioners.

77. The petition is, therefore, within the period of limitation and I find no merit in the objection raised by respondent nos.[2] to 5 on this account. CONCLUSIONS:

78. In view of the above, the Issues are decided as under: i) Whether the document dated 30th March 1994 is validly executed last Will and testament of late Shri. Vas Dev Ghei? The issue is decided in favour of the petitioners and against the respondent nos. 2 to 5. It is held that the Will dated 30th March, 1994 is validly executed last Will and testament of Late Shri Vas Dev Ghei. ii) Whether the Petitioner is entitled to letters of administration in respect of the document dated 30th March, 1994) of late Shri. Vas Dev Ghei? As the petitioners have been able to prove the Will dated 30th March, 1994 executed by late Shri Vas Dev Ghei, and are the beneficiaries thereunder, they are entitled to grant of Letters of Administration in respect of the said Will. iii)Whether the probate petition is barred by limitation? For reasons stated above, the present petition is not barred by limitation. iv) Whether the properties mentioned in the document dated 30th March, 1994) have not been properly valued? OPD No submission has been made by the respondent nos. 2 to 5 on this issue. The issue is accordingly decided against the respondent nos. 2 to 5 and in favour of the petitioners. The same is however, subject to the Registry obtaining a valuation of the property in question for the petitioners to pay the requisite Stamp Duty for the Letters of Administration. Directions

79. In view of the above, the Letters of Administration in respect of the Will dated 30.03.1994 (Ex.P-8) of Late Shri Vas Dev Ghei, is hereby granted to the petitioners, subject to payment of requisite Court Fee/Stamp Duty and the petitioners furnishing requisite Administrative Bonds and surety.

80. The petition is allowed in the above terms.