Full Text
HIGH COURT OF DELHI
Correction of statement of PW 1 dt. 20.11.2018., I.A. 6734/2020 -Dir. by Petr., I.A. 11658/2020 -Dir. by Petr., I.A. 1291/2021 -Dir. by Petr.
SUNITA KAKKAR @ BABY ..... Petitioner
Through: Mr.A.K.Singla, Sr.Adv. with Mr.Rahul Shukla, Mr.Akash Jandial, Advs.
Through: Mr.Rohit Kumar Modi, Adv for R-2.
JUDGMENT
1. The present petition under Section 276 of the Indian Succession Act, 1925 seeks grant of probate of the Will dated 22.10.2013, in respect of the movable and immovable properties left behind by Shri Manohar Lal (hereinafter referred to as the “Testator”), who expired on 25.03.2015.
2. Before dealing with the rival submissions of the parties, the brief factual matrix as is necessary for adjudication of the present petition may be noted.
3. The petitioner, who is the daughter of the Testator claims that the aforesaid Will, vide which the Testator had bequeathed all his movable and immovable assets in her favour was his last and only testament and was also attested by a Notary Public. It is further claimed that the Will was signed by the Testator in the presence of two attesting witnesses, who had signed the Will in his presence and in the presence of each other.
4. The Will specifically mentions the Testator‟s immovable assets as being the basement, ground/second floor and the terrace over the third floor of the property bearing House No. C-35, East of Kailash, New Delhi-
110065. The Will also describes the said property to be a self- acquired property of the Testator, and specifically states that the Testator had severed all his relations with his son and his family by way of public notices dated 22.10.2013 published in the Indian Express (English) and „Jansatta‟ (Hindi).
5. It is the petitioner‟s further case that before the execution of the aforesaid Will, the Testator had on 15.10.2012, made a will on a stamp paper in his own handwriting clearly expressing his intention of bequeathing all his assets to his daughter, the petitioner, and the reasons for disinheriting his son. It is submitted that since this handwritten Will was not signed by any attesting witness, it is the subsequent typed Will dated 22.10.2013, which has to be treated as his only Will and testament.
6. Upon notice being issued in petition on 24.08.2015, citations were published in „Jansatta‟ (Hindi) and „The Statesman‟ (English) on 18.09.2015 and 19.09.2015, respectively. Objections were thereafter filed by the respondent No.2, the son of the testator, on 28.10.2015 to which a rejoinder was filed by the petitioner on 26.11.2015. A Valuation Report was thereafter filed by Respondent No.1 on 23.05.2016, according to which, the value of the property was assessed as Rs. 2,86,63,120/-.
7. In support of the Petition, the petitioner filed her affidavit, as also of the two attesting Witnesses, namely, Lt. Col. (Retd) Sh. Prem Nath, and Sh. C.P. Batra. However, only the petitioner and Lt. Col. (Retd) Sh. Prem Nath, appeared in the Witness Box, as PW-1 and PW-2, respectively and were duly cross-examined. In her testimony, the Petitioner as PW-1 proved the Valuation Report, as also the two newspaper reports dated 22.10.2013, vide which public notices were issued by the Testator, disowning his son, the respondent No. 2, thereby severing all his relations with him. In her crossexamination, the petitioner specifically stated that the Testator was not on visiting terms with her brother, the respondent no.2 for the last more than 25 years, and was perceived by the Testator as a disobedient son, who was only permitted to conduct the last rites of his mother under pressure from relatives and friends.
8. The attesting witness Lt. Col. (Retd) Sh. Prem Nath, who was examined as PW-2, proved the Will dated 22.10.2013, and stated that the Testator was in sound disposing mind at the time of the execution of the Will. Furthermore, he had signed on the Will in the presence of the two attesting Witnesses, who had signed on the Will in the presence of the Testator and in the presence of each other. He specifically denied the suggestion that the Will bore the forged signatures of the Testator, and in fact, categorically stated that the Testator used to discuss about his strained relations with his son.
9. On the other hand, the respondent examined four witnesses. The respondent examined himself as DW-1, while Ms Neelam Sharma, the Notary Public, who had notarized the Will was examined as DW-2. Mr.Suraj Sharma, an official from Canara Bank, Branch East of Kailash, who proved the signatures of the testator, as available in the bank records at the time of opening of the account in 1982, was examined as DW-3. Mr. Narendra Nath, working as assistant officer at Pushpawati Singhania Hospital was examined as DW-4, who proved the medical documents pertaining to treatment of the testator‟s wife, Ms. Prakash Mahdhan.
10. Appearing on behalf of the petitioner, Mr. AK Singla, learned senior counsel has begun by stating that not only has the petitioner successfully proved the signatures of the testator on the Will, but has also been able to prove from the testimony of the attesting witness namely Lt. Col (Retd) Prem Nath, that the testator was in sound disposing mind at the time of execution of the Will. It has also been proved that the testator had put his signatures on the Will in the presence of both the attesting witnesses, who had also signed on the Will in the presence of each other and that of the testator. He submits that the petitioner has also proved the Public Notices, published in both Hindi and English Newspapers dated 22.10.2013, whereby the testator had specifically disowned his son, the respondent no.2.
11. Mr. Singla next submits that before executing the Will dated 22.10.2013, of which the petitioner is the sole executrix and beneficiary, the testator had executed a similar handwritten document on 15.10.2012, which was also described by him as a Will. Though the same was not signed by any attesting witness, the respondent no.2‟s wife had voluntarily made an endorsement thereon in hindi that they did not want any share in the testator‟s property being No.C-35, East of Kailash, New Delhi. Furthermore, DW-2 the Notary Public has also clearly stated that before notarising the Will, she had not only briefly noted the contents of the Will in the register maintained by her, but had also affixed his photograph and obtained the signatures of the testator on the register. He therefore prays that the Will having been duly proved and there being no suspicious circumstance to doubt the execution of the Will by the testator who was in a sound disposing mind at the time of execution of the Will, probate of the Will dated 22.10.2013 be granted in favour of the petitioner, the sole executrix of the Will.
12. Per contra, learned counsel for the respondent no.2, who is the only objector to the Will, begins by contending that the fact that the Will is a fabricated document is evident from a cumulative reading of the testimony of the attesting witness PW-2 and that of DW-2, the notary public who had attested the Will. While PW-2 had stated that the testator had signed the Will in the presence of both the attesting witnesses, this assertion of his was falsified by the testimony of DW-2, who had, on the other hand, stated that the signatures on the Will were appended by the testator in her presence. He submits that when PW-2, the attesting witness had admitted that he had not accompanied the testator to the Notary Public, it is evident that he had falsely stated that the testator had signed on the Will in his presence. He, therefore contends that the Will is liable to be rejected on this ground alone.
13. He next contends that despite the respondent no.2 having taken a categoric plea that the Will was a forged document, the petitioner has not led any independent evidence to prove the signatures of the testator. He submits that, on the other hand, a comparison of the testator‟s signatures on the Will with his admitted signatures on exhibit DW-3/1, the form signed by him at the time of opening a bank account in Canara Bank, would clearly show that the signatures on the Will are forged. He, therefore, prays that the petition is liable to be dismissed on this ground as well.
14. Finally, he submits that even the Public Notices in the Newspapers on which heavy reliance has been placed by the petitioner to demonstrate the purported strained relations between the testator and the respondent no. 2, have not been proved by leading any independent evidence. The petitioner having not examined the advocate, who had issued the Public Notices, cannot be permitted to rely on these notices. He, therefore, contends that the petitioner has not been able to establish any reason for the testator to disinherit the respondent no. 2, his only son and that too when he had with the consent of the testator performed the last rites of his mother. He, therefore, prays that the petition be dismissed.
15. Before dealing with the rival submissions of the parties, it would be apposite to note the principles regarding the nature of proof required to prove a Will as elucidated by the Apex Court in it‟s recent decision in Shiva Kumar vs. Sharanabasappa (2021) 11 SCC 277. The relevant extracts thereof read as under:
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”
16. What emerges from the aforesaid is that the propounder of a Will is required to prove that the Will set up by him is the final Will of the testator which he had signed in sound disposing mind after understanding the nature and effects of the dispositions made in the Will. The propounder must also examine one or more of the attesting witnesses and must remove all suspicious circumstances with regards to the execution of the Will by leading cogent evidence.
17. Having noted the legal principles, it is now time to refer to the facts of the present case. I may begin by noting that the respondent no. 2, who has filed objections to the Will was the only son of the testator. Despite this, the testator chose to bequeath his entire estate to his daughter, the petitioner herein. In order to appreciate as to whether the testator had given any reasons for disinheriting his only son, it would be necessary to note the contents of the Will in its entirety. The same read as under: “This Will is made at Delhi, on this 22nd day of October 2013 by Manohar Lal s/o Late Shri Bhagwan Dass aged about 90 years R/o C-35, East of Kailash, New Delhi-110065 of my free will and volition and with all senses intact and without any fear or favour hatred or malice or undue influence, or coercion from any quarter whatsoever. I hereby revoke my previous hand written Will made on 15.10.2012 and declare this Will to be my last, final and irrevocable WILL. I have been married to Ms.Prakash Sachdeva D/o late shri Bhoga Ram Sachdeva in the year 1953 and that out of our wedlock, we have one son named Sunil Madan who calls himself as Sunil Mandhan @ To-To and one daughter named Sunita @ Baby. I have given best of education to both my aforesaid children. My son Sunil Madan (Mandhan) is married to Smt.Ramesh who is a member of the Teaching Faculty of the Commerce Department of Maytri College, New,Delhi but my son has no issue from the marriage and they have adopted a son named Somesh. My daughter Sunita @ Baby is happily married to Shri Sudhir Kakkar son of Late Shri Vas Dev Kakkar and has one. son named Namit Kakkar and one daughter named Richa Kakkar, both my grand children are professionally qualified. I am the sole, absolute and exclusive owner of Basement, Ground Floor, Second Floor and Terrace over third. Floor of property No.C-35, East of Kailash, New Delhi-llOOGS. The said property is my self-acquired property and no member of my family has either contributed his mite or rendered any financial assistance in its acquisition and/or construction. My said Son Sunil Mandhan, after marriage and especially under the influence of his wife has become disobedient and disrespectful to my wife and myself and has parted ways and abandoned us in the year 1989 with no intention whatsoever to join the family again and even has not been on speaking or visiting terms with us since then. My son is presently living separately along with his family at -33, Pocket-A-2, Sector- 18, Rohini, Delhi-110085. As ill luck would have it, my wife Smt. Prakash expired of stomach ulcer on 15.08.2012 in Pushpavati Singhania Hospital, Saket, New Delhi and my son, against my wishes and on persuasion of relatives, was made to attend her crimination and performed her last rites along with me at Lodhi Road Electric Crematorium. My son and daughter-in-law, as heretofore, totally ignored me after the death of my wife and never bothered either to know my welfare or take care of me in my old and isolated life, whereas my daughter, her husband and her children stood by me- through thick and thin and provided me the protective arm. I have severed all my relations and have disowned and debarred my son, Sunil Madan(Mandhan) his wife Smt.Ramesh Mandhan and their adopted son Somesh through public notice published in the Indian Express Delhi Edition of 22.10.2013 in English and Jansatta Hindi Edition of 22.10,. 2013 from inheriting my aforesaid immovable property No.C- 35, East of Kailash, New Delhi and movable property by way of bank account, EDRs and entire household articles and belongings as may be subsisting at the time of my death. I, hereby, leave, give and bequeath absolutely and forever to my. said daughter Smt. Sunita Kakkar @ Baby for her use and benefit absolutely and forever my aforesaid immovable property as well as moveable- property. Accordingly I declare my said daughter' Smt. Sunita Kakkar as my sole beneficiary and legatee of my this Will and that my aforesaid son Sunil Mandhan, his wife Smt. Ramesh Mandhan and his adopted son Somesh. or legal heirs or any other person; claiming through them shall not stake any claim in the aforesaid property bearing No.C-35,.East of, Kailash, New Delhi-110065 and for my moveable property which shall be utilised absolutely, solely and exclusively by my said daughter Smt.Sunita Kakkar @ Baby. And I, hereby, appoint and constitute my said daughter Smt. Sunita Kakkar @ Baby as sole executrix of this Will who will be entitled to obtain a probate without being required to furnish any security. This Will shall come into force immediately on my death. In witness whereof I have hereunto set and subscribed by hand-and signature this 22nd day of October 2013 in the presence of two witnesses who have, also on my request subscribed their respective signatures as attesting witnesses in the presence of each other and in my presence. -sd- Testator Signed by the above named testator in our presence at the same time and each of us have in the presence, of the testator and of one another signed our names hereunder as attesting witnesses; Signature: Name: CP Batra S/o Late Shri Wishan Das Batra Address: J30, Ground Floor, Lajpat Nagar, New Delhi. Signatures: Name: Lt Col (Retd) Prem Nath S/o: Sh. Sahib Ram (late) Address: 1329 Sector 29 Arun Vihar, Noida Attested, Notary Public Neelam Sharma, Advocate”
18. From a bare perusal of the aforesaid, it becomes clear that the testator has in the Will, stated in detail about the respondent no. 2, his son as also about his daughter-in-law and had categorically stated therein that the respondent no. 2 had become disobedient and disrespectful to both him and his wife. He had further stated that the respondent no. 2 had after his marriage parted ways and abandoned the testator and his wife in 1989 and was not even on speaking and visiting terms with them. The testator had also explained that though the respondent no. 2, was on the persuasion of relatives and against his wishes permitted to perform the last rites of his wife, he had not bothered to even enquire about his welfare after the death of his wife when he was living alone and it was only his daughter, the petitioner and her family who stood by him in his old age. The testator has in the Will, also mentioned about the public notices in the English and Hindi newspapers, whereby, he had disowned and debarred respondent no. 2 and his family from inheriting both his immovable and movable properties. The testator then proceeded to categorically bequeath his entire property including C-35, East of Kailash, New Delhi to the petitioner and also declared her to be sole executrix of the Will. It is therefore evident that the Will in itself explains in detail about the reasons for the testator to bequeath his entire estate to the petitioner by excluding the respondent no. 2.
19. Even though, in my view, the aforesaid detailed reasons set out in the Will for disinheriting the respondent no. 2 are in itself sufficient to reject the respondent no. 2‟s plea that he being the only son of the testator, could not have been excluded by him, I may also note the other surrounding circumstances on which the petitioner has relied to contend that the testator had justifiable reasons to disinherit his son. As noted hereinabove, the Will was preceded by a handwritten document dated 15.10.2012 written by the testator on a stamp paper. Though this document was signed by the testator, it was not attested by any witnesses, and therefore does not fulfil the requirements of Section 63 of Indian Succession Act to qualify as a Will and can therefore at best be treated as a note left behind by the testator. Since this document (hereinafter referred to as “note”) gives an indication about the wishes of the testator, I am of the view that it would be appropriate to note the contents thereof as well. The same read as under: “I Manohar Lal aged eighty nine years S/o Late Shri Bhagwan das owner of Basement, ' Ground Floor, Second Floor ' plus Terrace on Top of C-35, East of Kailash, have two married children one son Suneel Madan alias Tootoo partner/owner of Shop No. 9 DDA Market, Madhuban'.Chowk, Delhi married to one impotent lady Smt. Romesh Madan Lecturer and employed in Maitrayee " College, Delhi. To hide her impotency, she adopted a son who may be twenty year by now. In addition I have one daughter happily married and have two grown up well education children. Due to impotent wife my son Suneel Madan left our house C-35, East of Kailash in the year 1989 with intention not to ' join the family again. In our old age my daughter' my son in law and their two children were looking after us. My wife Smt.Prakash Madan expired on the night 13/14 August 2012 due to ulcer in her stomach and died in hospital. I was not in a mood to call my son Suneel Madan but due to the pressure from my near relatives he was called to perform the last rites and he did perform. On the fourth day of my wife's death my son demanded half share in my residential house C- 35, East of Kailash, the demand was unwarranted ridiculous. He also said that he does not need the share for him but for his adopted son. I may write here that the house C-35 East of Kailash, Basement, Ground Floor, Second Floor plus Terrace is exclusively mine and no member of my family neither son nor" daughter have ever contributed in the acquisition or construction of the property. I am living very peacefully in my house C-35 and no body have any right to claim the share in the property. I am not weak no ailment no other health problem. I am hoping to live good healthy life now after, my daughter and children often come to console me. I denounce, my son Suneel Madan his wife and adopted son. They are not even entitled with the morning dust of the house C-35, East of Kailash. The house is exclusively mine. To avoid any litigation between the brother and sister after my death I gift the whole property to my daughter Sunita- Kakkar. In addition she is authorized to collect the balance left over amount in my Canara Bank pension account No.15144 and also leftover amount in P.N. Bank East of Kailash account No. 2606, I have Post office deposit n in EOK post office she shall not face any difficulty in receiving amount as she is the nominee declared. Suneeta Kakkar my daughter shall be the sole owner of my property C-35 EOK plus every, movable or immovable, furniture assets including gold etc. there in. In the end I again denounce my son Suneel Madan his wife, adopted son and they should avoid any legal action against his sister. At present moment I am feeling fit. Manohar Lal 15.10.2012.
20. At this stage, it may be also pertinent to notice that this „note‟ also bears an endorsement in Hindi by the respondent no.2‟s wife to the effect that she did not want any part of the property C-35, East of Kailash, New Delhi. During arguments, the respondent no.2 has given no explanation whatsoever regarding this endorsement. The English transcript of this endorsement reads as under: “Mujhey C-35 property mein se kuchh nahin chaihey.”
21. Even though from a perusal of the Will in itself, it is evident that the testator felt very strongly about disinheriting his son for which he gave sufficient reasons, the fact that he always wanted to disinherit his son comes out even more clearly from his handwritten „note‟ dated 15.10.2012. The testator had categorically stated in this handwritten „note‟ that after their son had abandoned them in 1989, it was only his daughter and son-in-law who were taking care of him and his wife in their old age. The testator had also mentioned that he had denounced his son, who was not on speaking or visiting terms with him and had made it clear that the respondent no. 2 would not be entitled to any part of his estate. The testator had further explained the circumstances in which the respondent no. 2, under pressure from relatives, was allowed to perform the last rites of his wife.
22. Since the testator had in his Will, also referred to two public notices issued by him, one in the „Indian Express‟ (English) and the other in „Jansatta‟ (Hindi) whereby he had disowned the respondent no. 2 and his family, I may now also note herein below, the contents of this public notice as published in the Indian Express on 22.10.2013: It is to inform to the general public that my client Sh.Manohar Lal S/o Late Sh. Bhagwandas R/o C-35"East of Kailash, New Delhi-110065 is the absolute owner of property bearing No.C-35, East of Kailash New Delhi-110065 has disowned and debarred his son namely Sunil Madan, Smt. Ramesh W/o Sh. Sunil Madan and their adopted son Mr. Somesh who are living separately at 33,PKT K-2, Sector-18, Rohini, Delhi-85 from his all properties both moveable and immovable. My client has severed all his relation with Sunil Madan Smt. Ramesh W/o Sh. Sunil Madan and their adopted son Mr.Somesh. My client shall not be held liable for any kind of acts /deeds, if any committed by him/them in future. Any person dealing with him /them in any respect whatsoever shall do so act his/her/their own risk. Sd/- Jaswant Rai Aggarwal Advocate 3 Shopping Complex, OPP. Vikas Sadan, INA, New Delhi-110023.
23. Even the contents of this public notice show that the testator had disowned his son and his family. Learned counsel for the respondent no.2 has not seriously disputed the contents thereof but has urged that the Advocate issuing the aforesaid public notice, having not been examined, no reliance ought to be placed on the same. I am, however, unable to agree. The petitioner had tendered in evidence, these public notices which were published in two well known newspapers but no such question was put to her during the cross-examination that the said notices were forged or fabricated or had not been published in the two newspapers as claimed by her. I therefore find no merit in the respondent no. 2‟s plea that these public notices should not be relied upon. In any event, I am of the view that even if these notices were to be ignored, the Will and the handwritten „note‟ in itself give sufficient reasons for excluding respondent no. 2 and therefore it cannot be said that the Will is shrouded by any suspicious circumstance.
24. Having come to the conclusion that the exclusion of respondent no.2 by the testator could, in the facts of the present case, not be said to be a suspicious circumstance, I may now proceed to consider whether the petitioner has been able to discharge the burden to prove the Will on the touchstone of Section 63 of the Indian Succession Act. In order to prove the Will, the petitioner along with the petition had filed affidavits of both the attesting witnesses, verifying the execution of the Will by the testator in their presence. One of the attesting witnesses, namely Lt. Col. (Retd) Prem Nath was examined as PW-2, wherein he reiterated that the testator was in sound disposing mind at the time of the execution of the Will, which was signed by the testator, in his presence and that of Shri C.P. Batra, the other attesting witness. The PW-2 has also clearly stated that the two attesting witnesses had signed the Will in the presence of the testator and in the presence of each other.
25. Furthermore, even during his cross-examination, PW-2 denied the suggestion that the signatures on the Will were forged or that the Will was not signed by the testator in his presence. The relevant extracts of his crossexamination read as under:
Ans. I do not know. It was already with him and nobody brought the WILL. Q. What was the time when you reached Mr. Manohar Lal's house? Ans. 11.45 am.
Manohar Lal signed the WILL. Ans. Only at one place. He must have signed on all the pages of the WILL. Q. Can you tell to the court whether Mr. Manohar Lal signed the WILL by ink pen or by ball point pen. Ans. It may by an ink pen. I think it was ball point pen.
WILLEx.A[6] in your presence. Ans. It is incorrect, Mr. Manohar Lal signed first in order, then Mr.C.P. Batra signed it and then I signed it.”
26. In the light of the aforesaid, it is evident that the testator has been able to prove that the Will dated 22.10.2013 was executed by the testator in sound disposing mind and the same was signed by him in the presence of two attesting witnesses who had also signed on the Will in his presence and the presence of each other.
27. Now I may deal with the respondent 2‟s plea that the stand of PW-2, the attesting witness, that the Will was signed by the testator in his presence was incorrect. In support of this plea, the respondent no.2 has relied on the testimony of DW-2, Ms. Neelam Sharma, the Notary Public and has contended that DW-2 had clearly stated that the Will was signed in her presence, when none of the attesting witnesses were available. In order to appreciate this plea, it would be apposite to note hereinbelow the testimony of DW-2, which reads as under:
Ans. The concerned deponent comes alongwith his / her ID proof, sign in notary public's register as well as on the document in the presence of notary public- Vide above-mentioned entry I had attested WILL "Ex.A6". And the signatures on the documents attested by me are made in my presence. Q[1]. Is it true that on 22.10.2013, Mr. Manohar Lal had appeared personally and physically before you forgetting his WILL dated 22.10.2013 (Ex. A[6])? Ans. Yes Q[2]. Is it true that you attested the WILL dated 22.10.2013(Ex. A[6]) after Shri Manohar Lal had conveyed to you the execution thereof and request for attestation by you on the same? Ans. Yes Q[3]. Is it true that Shri Manohar Lal on said date i.e. 22.10.2013 visited your office on his own to your office? Ans. Yes. Q[4]. Before attesting the WILL dated 22.10.2013(Ex. AO), did you confirm whether Shri Manohar Lal was aware about the contents thereof? Ans. Yes.
28. Though on the first blush the respondent no.2‟s plea that DW-2 had stated that the Will was signed by the testator in her presence, appears to be attractive, a careful consideration of her testimony shows that while explaining the procedure for attesting of a document, she had stated that the concerned deponent has to sign in the Notary Public Register, as also on the document, in the presence of the Notary Public. This could only imply that the deponent, whose document is to be attested has to sign in the Notary Public register, in the presence of the Notary Public. There is nothing to show that the deponent was asked or was required to sign on the Will in her presence. On the other hand, it is clear from the answer to question no.2 that DW-2 had clearly stated that she had attested the Will only after the testator had conveyed to her of having executed the same and had requested her to attest the same. It, therefore, emerges that the testator had confirmed to the notary public DW-2, about having executed the Will, which was then attested by her after obtaining the signatures of the testator in the Notary Public‟s register maintained by her. This is in no manner inconsistent with the statement of PW-2, who has stated that the Will was signed by the testator in his presence and in the presence of the other attesting witness.
29. I may now deal with the respondent no.2‟s final objection that the petition must fail as the petitioner has not proved the signatures of the testator by examining a handwriting expert, especially when his signatures on the Will do not appear to match with his signatures on the record of Canara Bank, produced by DW-3. In order to appreciate this plea, it needs to be noted that the document as produced by DW-3 was signed by the testator on 01.01.1982 whereas his signatures on the Will pertain to October 2013. It is noteworthy that DW-3 had himself in his cross-examination stated that the signatures of a person can change with passage of time. In the present case, the time gap being almost 32 years. It would therefore be useful to refer to the relevant extract of the cross-examination of DW-3 on this aspect. The same reads as under.- Q[1]. Is it true that with the passage of time there may occur changes / differences in the signature of a person? Ans. Yes
30. From the aforesaid stand taken by DW-3 in his cross-examination, it becomes evident that even he has categorically admitted that the signatures of a person can change with passage of time. As observed hereinabove, the two documents, sought to be compared were signed by the testator almost 32 years apart, the Bank account opening form having been signed by him on 01.01.1982 and the Will having been signed on 22.10.2013. Despite this factual position, the respondent no.2 has sought to contend that the signatures of the testator on the two documents ought to have been identical. I fail to appreciate as to how the slight variation, if any in the signatures of a person on two documents signed 32 years apart can lead to a conclusion that the signatures on one of the documents are forged. In any event, both the petitioner‟s witnesses had categorically identified the signatures of the testator. The respondent no.2 not having examined any handwriting expert, cannot now be permitted to raise this bald plea that the signatures of the testator are forged. Furthermore, to satisfy my conscience, I have examined the signatures of the testator on the Will as also on the Bank account opening form dated 01.01.1982 and do not find any reason to hold that the signatures of the testator on the Will are forged.
31. In the light of the foregoing discussion, I am of the considered view that the petitioner has not only been able to prove the execution of the Will as per Section 63 of the Indian Succession Act but has been able to dispel all suspicious circumstances alleged by the respondent no.2. There is therefore no impediment for the grant of probate of the Will in favour of the petitioner.
32. The petition is accordingly allowed and probate with respect to Will dated 22.10.2013 is subject to payment of the requisite stamp duty and court fees granted in favour of the petitioner. Taking into account that the petitioner is the sole beneficiary under the Will, she is exempted from furnishing any security bond. She will however file the Administration bond to satisfaction of the learned Registrar General of this Court, for which purpose, the matter be listed before the learned Registrar General on 20.09.2023.
JUDGE AUGUST 23, 2023