Harpal Singh v. Deepti Ajay Singh

8. From the above, he pointed out that the Defendant had duly proved that, the said Will had been validly executed by deceased in terms of Section 63

(c) of the Succession Act. He submitted that therefore the Plaintiff had duly discharged the initial burden cast upon the Plaintiff to prove due execution of the said Will and therefore Issue No. 1 was required to be answered in the affirmative.

9. He then submitted that insofar as the Issue No. 2 was concerned, the only evidence led by the Defendant in support thereof was that of the Power of Attorney holder Mr. Satyendra Kumar Raghav (DW-1). He pointed out that the only deposition to be found in support of this contention in the AOE of DW-1 was the following, viz. “3. I say that when I personally visited the place where he resided in Mira Road, Thane, neighbours of Ajay Singh told me that he was addicted to alcohol. I say that with the Notice of Motion NO. 150/2019, the petitioner has filed letter dated 28.12.2015 of ICICI Bank, addressed to Prothonotary and Senior Master, High Court Bombay as Exhibit- M at pages 38 to 40. Aforesaid page 40 is “Statement of transactions in Savings Bank Account no. 00041690317 of Ajay Singh for the period 07-09-2014 to 22-12-2015”, wherein the first transaction is as below:- Date Particulars Chq NO. Withdra wals Depo sits Autosw eep Resver se sweep Balance (INR) 08-09- VPS/MIRAJ WINES/2014 /0 800.00 23,759.73 Cr This transaction pertains to purchases made by deceased Ajay Singh on 2014-09-07 [digits in the second line in particulars column show date of transaction [20140907 being: year 2014, month 09, date 07] from Miraj Wines. Copy of letter dated 28.12.2015 of ICICI Bank is annexed herewith and marked as EXHIBIT-2.” Learned Counsel then invited my attention to the following answer given in cross examination by DW-1viz. “Q.13) During your interaction with Mr. Ajay Singh, did you ever see him consume alcohol in your presence? Ans: On the few occasions that he visited my house or I visited his, I have never witnessed him consume alcohol.” Basis the above, he submitted that DW-1 had himself in cross-examination confirmed, that he had never witnessed the deceased consume alcohol. He then submitted that though DW-1 had been informed by the neighbours of the Deceased, that the Deceased was addicted to alcohol. He however submitted that no evidence of any neighbour was led in support of this contention. He thus submitted that the Defendant had not led any positive evidence in support of Issue No. 2

10. He then, submitted that, on the contrary, the evidence of both PW-1 and PW-2 demonstrated that at the time attestation, the deceased was in a sound and disposing state of mind and was not under the influence of alcohol or inebriated when executing the said Will. In support of his contention, he invited my attention to the following questions and answers thereto in the crossexamination of PW-1 and PW-2; PW-1- Hirein Sharma:-

11. Insofar as issue No. 3, Learned Counsel submitted that the burden of proving the said issue was cast squarely upon the Defendant. He submitted that the Defendant had admittedly, failed to lead any evidence on the said issue and therefore the occasion to cross-examine DW-1 on the said issue did not arise. He reiterated that the evidence of PW-1 and PW-2 was adequate to prove that the deceased was not forcibly made to sign the said Will as had specifically been deposed to in paragraph No.5 of the respective AOEs. He then invited my attention to the following questions put to the respective attesting witnesses and the answers given by them thereto, viz. PW-1- Hirein Sharma:-

12. Insofar as the issue No.4 was concerned, Learned Counsel submitted that, the burden of proving this issue again was squarely upon the Defendant. He submitted that the Defendant in support of this issue had admittedly not led the evidence of any handwriting expert. The only evidence led in support of this issue was that of DW-1 wherein DW-1 has stated as follows;

Without prejudice to aforesaid, Learned Counsel firstly, submitted that PW-1 was admittedly not a handwriting expert and secondly, that despite having ample opportunity DW-1 had chosen not to produce the evidence of a handwriting, expert but had chosen to prove forgery and fabrication based on his own evidence. He submitted that the Defendant had, conversely taken out an Interim Application being Interim Application (L) No.7313 of 2023 belatedly for verification of the signatures of the Deceased on the said Will. He submitted that the said Application was completely malafide and taken out only with the sole intent of delaying the hearing of the present Suit.

13. Learned Counsel then submitted that in view of the aforesaid, there was admittedly no positive evidence other than the mere ipse dixit of DW-1 to allege that the said signature appearing on the said Will was forged. In view thereof, he submitted that the same must necessarily be answered in the negative.

14. Mr. Bharucha then placing reliance upon a judgment in the case of Corra Vedachalan Chetty vs G. Janakiraman[3] and submitted that this Court was required to taken into consideration the conduct of the Caveator when deciding a Suit for Probate. He then invited my attention to the following to point out the dilatory tactics undertaken by DW-1 to delay the matter viz. i. That the Defendant had by an order dated 3rd September 2019 been granted four weeks’ time to file the AOE. ii. On 17th October, 2019 the Defendant however sought time to file the AOE on the ground that the Defendant was now a major, hence the Defendant was once again granted time of 4 weeks to file the AOE. The Defendant, however, did not file her AOE, but instead filed the AOE of DW-1. iii. On 25th September 2021 the Defendant once again sought time to file a fresh AOE of DW-1 since the AOE of DW-1 was not to the personal 3 2001 (3) CTC 283 knowledge of DW-1. This Court therefore on 25th August, 2021 observed as follows, viz.

21. She then submitted that the signatures appearing on the said Will were forged and fabricated and not genuine. Learned Counsel then submitted that DW-1 had prepared a chart of specimen signatures of the impugned Will as compared to three other documents, basis which, she submitted that ex facie the signatures of the deceased as appearing on the said Will were different from that of documents.

22. Basis all the above, she submitted that there existed several suspicious circumstances around the said Will which the Plaintiff had failed to discharge. She thus submitted that probate of the said Will ought not to be granted and the Suit ought to be dismissed. Reason and conclusion

23. I have heard learned counsel for the parties, considered the rival contentions as also the case law cited and the evidence led. Before proceeding further, however, it is first useful to set out the well settled legal principles which a Court is required to take into consideration when deciding a matter regarding the proof of a Will. The Hon’ble Supreme Court in the case of H. Venkatachala Iyengar Vs. B. N. Thimmajamma & Ors.[5] laid down as follows, viz.

24. The burden of proving issue No.1 is squarely upon the Plaintiff. The Plaintiff has in support of issue No.1 led the evidence of both the attesting witnesses and the propounder in support of proving Issue No. 1. I shall therefore now proceed to examine evidence led by the Plaintiff to ascertain if the same proves due execution of the said Will as contemplated in Section 63 of the Succession Act, viz. i. As noted by the Hon’ble Supreme Court, in the case of H. Venkatachala Iyengar that “The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document 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.”. I find that there is absolutely no positive evidence led by the Plaintiff to prove that the signature on the said Will was that of the deceased. Thus, the burden to prove the said Will cast upon the Plaintiff has not been discharged. The Affidavit of Evidence of the Plaintiff really is more in the nature of a pleading and does not in my view even remotely discharge the burden caste upon the Plaintiff as propounder of the said Will to discharge. ii. Additionally, due execution requires the propounder to establish that that the Testator understood the nature and effect of the disposition in the said Will and had put his signature to the said Will knowing what it contained. Therefore, there must necessarily be evidence to support the knowledge of the Testator to the nature and effect of the dispositions made under the said Will which he is stated to have signed. In the facts of the present case, it is the Plaintiff’s contention that at the time of execution of the said Will, only the deceased and the attesting witnesses were present. A perusal of the AOE of both the attesting witnesses showed that they had not anywhere deposed to the fact that the deceased had read and understood the said Will or that the deceased was conscious of the nature amd effect thereof. Both the AOEs simply state as follows, viz. AOE of PW-1- “I was present together with the Deceased and Karsan Chaudhary (my cousin brother) at the residence of the Deceased above named and we did then and there see the said Deceased put his signature at the foot of the testamentary paper in the English language and character, which is referred to in the petition herein as the Will and marked as Exhibit “A” to the Petition, and declare and publish the same as his last will and testament.” AOE of PW-2- “I was present together with the Deceased and Hirein Sharma (my cousin brother) at the residence of the Deceased above named and we did then and there see the said Deceased put his signature at the foot of the testamentary paper in the English language and character, which is referred to in the petition herein as the Will and marked as Exhibit “A” to the Petition, and declare and publish the same as his last will and testament.” At the very highest, this evidence would show that the attesting witnesses had witnessed the ministerial act of the deceased signing the said Will and nothing more. There is absolutely nothing stated in the AOE to the effect that the deceased had signed the said Will after having read and understood the nature and effect of the same. iii. To prove a Will, the propounder is required to show by satisfactory evidence inter alia, that the testator at the relevant time had understood the nature and effect of the dispositions and put his signature to the document of his own free will. It is the Plaintiffs case that the time of execution of the said Will, only the attesting witnesses were present with the deceased. A careful reading of AOEs of both the attesting witnesses make absolutely no mention of the fact that the deceased had understood the nature and effect of the dispositions before signing the said Will. At the highest what the AOEs prove is the ministerial act of the Deceased signing the said Will and nothing more. The Hon’ble Supreme Court in in the context of valid fulfillment of the requirements of Section 63 of the Succession Act has in the case of State of Haryana Vs. Harnam Singh and Ors.[6] held as follows; “The requirement of Section 63 of the Succession Act, 1925 cannot be said to have been fulfilled by mechanical compliance of the stipulations therein. Evidence of meeting the requirement of the said provision must be reliable. The fact-finding courts did not find such evidence to be reliable.” Thus, the Hon’ble Supreme Court has held that there cannot be mechanical compliance with the provisions of Section 63 of the Succession Act. The Court is therefore required to determine whether in substance and spirit the provisions of Section 63 have infact been fulfilled. In the present case, I find that both the AOEs apart from being cryptic and short, are virtually identical in all respects. Both the AOEs could very well have been photocopies of each other. While no doubt an AOE proving due execution of a Will does not have to be elaborate or unnecessarily long. The same must fulfill the criteria of Section 63 of the Succession Act. Section 63(c) of the Succession Act.

In this case, I find that the same are purely mechanical and infact do not. iv. Additionally, both the attesting witnesses have deposed to the fact that they have independently given instructions for the drafting of their respective AOEs. PW-1 has stated in cross examination that his AOE was drafted on his instructions by his stenographer. PW-2 has stated that his AOE was prepared by a stenographer from the chamber of PW-1 on the instructions of PW-2. However, a perusal of both the AOEs show that they are virtually identical in both content and form. Both the said AOE’s for all practical purposes could be the same. It is therefore incredulous to suggest that independent instructions were given for the drafting of these AOEs. To say so, is plainly false. The AOEs were clearly drafted by the same individual and not on the independent instructions given by both the attesting witnesses as stated in cross examination. v. Crucially, PW-1 has in his AOE stated that he knew and was well acquainted with the deceased since the deceased was a childhood friend of his uncle Mr. Rajiv lal Chaudhary. However, in crossexamination, PW-1 has stated that he has met the deceased for the first time on 1st December 2013, i.e., the date on which the said Will is supposed said to have been executed viz. “Q.[4] Have you ever met the deceased, Mr. Ajay Singh during his lifetime? Ans. I have met Mr. Ajay Singh twice. The first time was on the day when he asked me to sign as a witness on his Will, i.e., on 1st December 2013. The second instance was probably on 7th or 8th December 2013 when he had come to my house to meet Karsan Chaudhary (PW-2) and me.” Clearly therefore, PW-1 has given false evidence in his AOE when he has stated that he knew and was well acquainted with the Deceased. vi. PW-2 in cross-examination has initially stated in answer to question No. 46 that he had no discussions with the deceased regarding the said Will. However, thereafter, in answer to question No. 53, PW-2 has stated that he had discussions with the deceased who orally described the contents of the said Will to PW-1 and PW-2. This again shows the inconsistency in the evidence led. vii. PW-2 has answered question No.100 answered as follows; “Q.100. Can you tell us who asked you to mention your PAN? Ans: Prior to my signing of the said Will, the same was signed by my brother Mr. Hirein Sharma. As Mr. Hirein Sharma has mentioned his PAN, I also did the same. No one asked me to do specifically.” However, a perusal of the said Will shows that PW-1 has infact not mentioned his PAN number anywhere on the said Will. Clearly, therefore, PW-2 has also given false evidence. viii. Hence, in view of the above, I have no hesitation in holding that the Plaintiff has failed to prove Issue No. 1 and is therefore answered in the negative. Given that Issue No. 1 has been answered in the negative, the need to consider and answer Issue Nos. 2 to 4 does not arise.

25. Additionally, I must note that in the present case, there are overwhelming suspicious circumstances in addition to the said Will being a grossly unnatural Will. The law is now well established that, there is a heavy burden upon a Propounder to dispel the suspicious circumstance. In the present case, not so much as an attempt has been made by the Plaintiff to do so. What to my mind are glaring examples of the said Will not being a genuine and infact a wholly unnatural will are the following, viz. i. The said Will effectively completely excludes the only child and daughter of the deceased who was a minor at the time when the Will was supposedly made and ensures that the minor child will get nothing (no matter what dire straits she may be in) until attaining the age of 25 years or marriage, and that to on production of a marriage certificate. Additionally, even this bequest/condition is at the total and unfettered discretion of the other beneficiaries of the Deceased. ii. The said Will while excluding the only child of the Deceased, has effectively bequeathed his entire estate to his father who had admittedly disowned the deceased and had absolutely no contact with since the year

2001. iii. The said Will though stated to be made by the Deceased himself refers to the Deceased in the third person. iv. That the fact that the said Will predetermined that the Deceased would pass away before the Defendant had attained the age of 25 years. v. The fact that both the attesting witnesses who were infact young boys in their 20’s and early 30’s who admittedly were permanent residents of New Delhi, were chosen as attesting witnesses instead of persons well known to the deceased. I have no hesitation in holding that all of the above are indeed most suspicious circumstance and there had been not even an attempt by the Plaintiff to explain away the same by leading any evidence. The Will has sought to be proved in the most mechanical matter and the Plaintiff has miserably failed to prove both the requirements for proof of a will as also the conscience of the Court.

26. Before parting with this order, one aspect, I must also deal with since great emphasis was laid by the Plaintiff, was the conduct of DW-1 namely Mr. Satyendra Kumar Raghav. The Plaintiff placed strong reliance upon the Order dated 25th August 2021, where the Learned Judge held that Mr. Raghav had done a great disservice to the Defendant, his granddaughter. Firstly, I must note that the said Order was passed in the context of the time taken by Mr. Raghav to file the AOE and secondly, the Learned Judge did not have the benefit of appreciating the evidence in the matter, as I have had. Hence, the emphasis on the said Order at the final hearing stage is entirely out of context and misplaced. I find that there is absolutely no disservice done by Mr. Raghav to the Defendant whatsoever. The disservice to the Defendant, to put it mildly is at the hands of those who seek propound such an unnatural and patently false Will. What it really boils down to is a grandfather, who, by his own admission is well placed in life, and yet seeks to exclude his own granddaughter from the estate of her deceased father..

27. Insofar as the Interim Applications are concerned, Ms. Yadav apart from stating the same had been filed and ought to be considered before the final hearing of the present Suit, did not really advanced any arguments in support of either of the Interim Applications. I have perused Interim Applications and find that in view of the fact that issue No.1 has been answered in the negative, the same do not therefore survive.

28. Hence, for the reasons aforestated, I dismiss the present Suit and the Interim Applications are also disposed of accordingly. (ARIF S. DOCTOR, J.)