Ajit Singh & Ors. v. State & Ors.

32. The learned Single Judge specifically rejected the contention that the Will may have been fabricated or forged on blank papers by PW[2]. This court too, finds such a suggestion nothing short of incredulous, given the educational qualifications, experience, stature, capability and wisdom of not merely the Testator. The court is also cognizant of the persons who were advising him on a professional and personal basis, of the persons who were named as Trustees in the bequest. The State of Rajasthan has not challenged this finding in its appeal either.

33. The impugned order, however, proceeded to observe as under: 93....Therefore I feel it is too farfetched to allege that the Will was fabricated or forged by PW-2, Parmeshwar Prasad, but certainly the fact of the matter remains that PW-2, Parmeshwar Prasad, must have manipulated things in such a manner so the formalities of the Will are sought to be completed at different times without actually making all the three persons, namely, the deceased/Testator and the two attesting witnesses to sign simultaneously because RW-8, R.K. Singh, has specifically stated that when he went to Sardar Patel Road, he did not see the deceased/Testator and it was PW-2, Parmeshwar Prasad, who made him sign the document in question. To that extent, one can certainly say that this is a suspicious circumstance which goes against the petitioners.‖

34. The above inference, in our opinion, is not sustainable because of the abject lack of cross-examination of PW[2] in this regard. Barring a solitary suggestion that the Testator was compelled or manipulated by PW[2] to execute the Will so as to benefit from it, a suggestion was denied by PW[2], there was no basis for such an inference. Instead, there is considerable evidence in the appellant‟s favour, which appears to have not been appreciated by the impugned order.

35. Ms. Kusum Lata (RW[7]) from the Office of the Registrar confirmed that the Register produced by her from the aforesaid office bears Entry 335 showing that a Will and Testament of the Testator was deposited and that Mr. P.N. Khanna (PW[1]) and Mr. R.K. Singh (RW[8]) were witnesses to the Will and Testament. She deposed as under:- ―I have brought Book No.5 which is maintained in the office of the Registrar in which entries are made in respect of the Wills deposited in the office of the register which shows that a will of Raja Bahadur Sardar Singh son of Raja Bahadur Amar Singh was deposited in our office on 30th October 1985. It is also mentioned that the witnesses of the will are Shri P.N. Khanna son of Shri Barkat Ram and Shri R.K.Singh, Advocate.‖

36. This testimony, especially when taken with that of PW[1] and PW[2] is of considerable significance and, in our view, negates and renders baseless, the inference that PW[2] may have ―manipulated things in such a manner so the formalities of the Will are sought to be completed at different times without actually making all the three persons, namely, the deceased/Testator and the two attesting witnesses to sign simultaneously‖.

37. The testimony of RW[7] clearly shows that the Will was executed and was deposited in the office of the Registrar in the manner prescribed under sections 42 and 43 of the Registration Act, 1908, which read as under:- ―42. Deposit of wills.—Any Testator may, either personally or by duly authorised agent, deposit with any name of the Testator and that of his agent (if any) and with a statement of the nature of the document.

43. Procedure on deposit of wills.— (1) On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit is the Testator or his agent, shall transcribe in his Register-book No. 5 the superscription aforesaid, and shall note in the same book and on the said cover the year, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the Testator or his agent, and any legible inscription which may be on the seal of the cover. (2) The Registrar shall then place and retain the sealed cover in his fire-proof box.‖

38. Rule 20 of the Delhi Registration Rules, 1976 reads as under:- ―.20. Book No. V. -(1) Book V is to be kept only in the office of Registrar, who alone can receive Wills in sealed covers for deposit. It shall contain the following headings: (1) Serial Number; (2) Superscription on the sealed cover; (3) Description on the seal of the cover; (4) Time of presentation and receipt of the sealed cover, year, month, day and hour; (5) Name of depositor; (6) Names of persons testifying to the identity of depositor; (7) Time of delivery of the sealed cover to applicant for withdrawal year, month, day and hour; (8) Names of persons testifying to the identity of the applicant and the time, of delivery; (9) Times of opening the sealed coveryear, month, day, hour. (2) Columns (1) to (6) shall be filled in when a Will is first deposited under section 43 of the Act. Columns (7) and (8) shall be filled up in the event of the Will being subsequently withdrawn, and column (9) shall be filled up when a Will is opened after the death of the Testator, under section 45 or 46 of the Act. All these several entries must be verified by the signature of the Registrar for the time being. When a Will had been removed by order of a court under section 46 (1) of the Act the fact shall be noted in red ink across the entry and the note shall be authenticated by the signature of the

39. Presumption of facts as envisaged under section 114 of the Evidence Act and Illustration (e) thereto are reproduced hereinbelow:- ―Section 114. Court may presume existence of certain facts: … (e) that judicial and official acts have been regularly performed; …”

40. In view of the above, the impugned order ought to have presumed that the official act of receiving the Will and Testament was performed by the Registrar, in accordance with law and the contents on the sealed envelope were accurately recorded by the Registrar, especially because the Registrar, in terms of provisions of section 43 of the Registration Act, 1908 and the rules applicable thereunder, satisfied himself that the person presenting the Will and Testament is the Testator himself and thereafter transcribed in Register Book No. 5 and on the cover of the envelope, the names of the Testator and Mr. P.N. Khanna (PW[1]) and Mr. R.K. Singh(RW[8]) as the persons who testified to the identity of the Testator. This is all the more so, because the original Will in the sealed cover has been seen, compared to be identical to the original Duplicate produced in court with the probate petition, and the Will and cover/envelope bear the writing and signatures as set out above.

41. There is a presumption of correctness of a „public document.‟ This presumption has gone un-rebutted, giving us no cause to disbelieve it. The Will deposited with the Registrar is a „public document‟ within the meaning of section 74(2) of the Evidence Act.[1]

42. The Supreme Court has held that an entry made by an officer in the Birth Register was in discharge of his official duties and, therefore, there was no requirement to examine the officer.[2]

43. There is presumption about the validity and regularity of the official act. The onus to prove the contrary is on the person who seeks 1Bhasin Film Corporation v. M/s Shalimar Cinema, AIR 1983 Del 317 2Harpal Singh and Another vs. State of Himachal Pradesh, 1981 (1) SCC 560 to rebut the presumption by cogent and relevant material.[3]

44. The Supreme Court held that once a certified copy of the Will has been placed on record from the office of the Registrar, the onus to prove that the registration was not in accordance with law is on the party alleging so.[4]

45. In the present case, the envelope containing the original Will was produced by the Registrar, it was opened in court and seen, as has been reproduced hereinabove. This is not rebutted by any cogent and relevant evidence. The envelope of the original Will stands proven and its contents, i.e. the Will too stand proven. In any event, there is no basis for the inference drawn in the impugned order, as regards the role played by PW[2] in respect of execution or registration of the Will. Therefore, that inference and finding cannot be sustained. The impact of RW8‟s testimony on this inference will be dealt with at a more appropriate juncture in this judgement.

46. In our view, the testimonies of PW[1] and PW[2], which have gone uncontroverted in cross-examination, read with the testimony of RW[7], the Will and the cover in which it was sealed, make it abundantly clear that the requirements of proving the Will, in terms of Section 68 of the Evidence Act are complied with, and the requirement of proving that the Will was executed, in accordance with Section 63 of Succession Act, was complied with. This, by itself, is sufficient to allow Test Cas 26/1987. However, inasmuch as the impugned order has drawn certain conclusions that may have a bearing on this, the same are being 3Surendra M. Mittal v. NCDRC,2008 AIR (Del)35 4Smt.Swaran Lata vs. State,2006 AIR (Del) 21 discussed. Section 89 of the Succession Act requires the property to be specified and the Will is bad for not doing so

47. The impugned order held that the Will suffered from ambiguity since it did not specify what part of the estate of the Testator forms a part of the bequest.

48. As perused from the Will reproduced hereinabove, the Testator has specified that he bequeaths ―ALL THOSE my properties, movable or immovable, anywhere, upon trust as below appears. The name of the Trust shall be the KHETRI TRUST.‖ The beneficiaries of the Will had been specified. The words used in the Will are "ALL THOSE my properties, movable or immovable, anywhere......".

49. Recital (C) of the Will propounded reads as under:- "I am possessed of immovable and movable assets as appear from my Wealth Tax Returns."

50. The Will, at para. 3, inter alia, reads as under:- "I hereby bequeath and give unto and to my said Executors and Trustees....., ALL THOSE my properties, movable or immovable, anywhere. upon trust as below appears....The name of the Trust shall be the KHETRI TRUST."

51. Quite clearly, the assets of the Testator, as contained in his Wealth Tax Returns, i.e. all those of his properties, movable or immovable that may be anywhere, were bequeathed, to the named beneficiary i.e. the Khetri Trust. In our view, there was no ambiguity or uncertainty regarding the property/the subject matter or the beneficiary of the bequest.

52. The impugned order felt that use of the term “as below appears” in para. 3 of the Will must relate to the term “properties movable or immovable”. To put it differently, the impugned order felt that para.3, by bequeathing properties movable or immovable as below appears, introduced an element of uncertainty because the rest of the Will did not expressly state what those properties were that were to appear below para.3.

53. However, in our view, this interpretation cannot be sustained. The term “as below appears” was preceded by the words “upon trust”, indicating that the term “as below appears” relates to the term “trust”. To put it differently, the bequest was of “ALL THOSE my properties movable or immovable”, upon the Trust as appears below. This is apparent from the fact that para.[4] reads ―The name of the Trust shall be KHETRI TRUST‖. Non-Summoning of Gokul Anand:

54. The contention of the State of Rajasthan apropos the nonsummoning of Gokul Anand, Personal Assistant of the Testator, can hardly be a ground of suspicion because making of a Will is a confidential exercise and the Testator may not want the Personal Assistant to be informed of it, for reasons best known to the Testator, because disclosure to or knowledge of the same by other unrelated persons could have spread to many persons, who may have had an eye on the estate or have nursed a hope to inherit or otherwise obtain a part of the same. Unnecessary obstacles could have been created by even an employee associated with him. Besides the Personal Assistant may not necessarily be a trusted confidante.

55. Human nature is fickle and having some wisdom of the world, the Testator took a call not to disclose the factum or contents of his Will to anyone, he did not deem necessary. The law does not require a Testator to inform a person closest to him or her of the making of a Will. In the circumstances, it can hardly be said that the stand of the Appellant, that summoning Mr. Anand and subjecting him to examination would cause undue delay was a baseless or unjustified contention.

56. In any event, the observation of the impugned order that the factum of preferring an appeal against the order summoning Mr. Anand, justifies drawing an inference against the Appellant is wholly unsustainable. Appeal, once provided in a Statute, is a matter of right, that cannot be made subject to such considerations, a fortiori when the Division Bench found merit in the appeal and set aside the order summoning Mr. Anand.

57. In the circumstances, the learned Single Judge has erred in inferring against the appellant for not summoning Mr. Gokul Anand. Contentions apropos signing of the WILL by Mr. Danial Latifi:

58. As regards the answer in the affirmative by Mr. Danial Latifi to the query that he had signed the original Will, the appellant submitted that Mr. Danial Latifi had entered the witness box only to prove the bill raised by him on the Testator, especially regarding the fee paid to Mr. R.K. Singh (PW[8]) for the latter‟s assistance in the execution and registration of the Will dated 30.10.1985. It is neither the case of the Executor nor of the objector that Mr. Danial Latifi had signed the Will. On the contrary, the bill raised by Mr. Danial Latifi on the Testator was the document in issue, for which he was being examined and he was referring to his signatures on the original bill and not the original Will. The two words „bill‟ and „Will‟ are phonetically similar and it appears to be an apparent inadvertent typographical error. The same error appears to have continued while typing the crossexamination of Mr. Danial Latifi.

59. The order dated 04.12.2003 passed in the Probate proceedings reads as under:- ―….Objector has prayed for an inspection of the bill (sic Will) dated 30th October, 1985 along with the further documents which are lying in the sealed cover…..‖

60. Interestingly, no further questions were put to Mr. Danial Latifi regarding the signature on the Will and Testament or as to who all were present at the time of signatures.

61. The only reason why Mr. Latifi‟s evidence was led by the appellants was because a doubt was raised apropos the role of Mr. R.K. Singh and whether he was paid any money for assistance in drafting, execution, and presentation of the Will, for deposit with the Will to seek his confirmation as to whether it was the said Will which was “signed” by him? Nor were any questions asked of him as to where was the Will which was signed by him. The respondent‟s argument of a Will being signed by Mr. Latifi is based on an answer in affirmative to a question “have you signed the original Will”.

62. In our view, the reference in Mr. Latifi‟s answer was undoubtedly to the bill and not to the Will. It is quite likely that Mr. Latifi misheard the word „Will‟ as „Bill‟ possibly due to his age or ambient noise. Alternatively, due to typographical error the word Will got typed instead of Bill and continued through in the testimony and in the order. This, in our view, is at best a minor discrepancy. Apropos minor discrepancies in recording of evidence a Division Bench of this court in Inder Singh & Surender Singh vs State 1977 SCC OnLine Del 143 has held as under: ―…58. Like the Additional Sessions Judge, I think the discrepancies are too minor. Such discrepancies can and do occur in the statement of any truthful witness. Given the imperfections of the human mind it would be strange if they did not. Hence, the mere existence of some discrepancies is not of itself sufficient to discredit a witness. There must be an ‗attempt to appraise their real value and effect‘, and ‗unless there is any good ground to think that they are due to a deliberate attempt to suppress or depart from the truth it is unfair to discard the direct testimony of witnesses merely on account of such discrepancies, when there is general agreement as to the material circumstances‘: see Emperor v Muhammad Khan &Anr, AIR 1934 Lahore 710 (47)….‖

63. More importantly, even if it is assumed that there was a counter-part of the Will which was signed by Mr. Latifi, it would not affect the grant of probate of a Will produced from the office of the regarding handing-over of the Will to the Registrar has gone unrebutted. Therefore, this aspect stands proven. The professional bill being referred to by Mr. Latifi, which was signed by him, is reproduced herebelow: Apropos Danial Latifi’s presence at Tis Hazari on 30.10.1985:

64. The respondent says that albeit Mr. P.N. Khanna had deposed that besides the Testator, he himself and Mr. R.K. Singh, Advocate, the personal assistant of the Testator, Mr. Gokul Anand and two members of his staff excluding the driver were present when the Will (Ex. P-1) was executed at Tis Hazari Court Complex, Delhi, outside the Registrar‟s office, and he did not know if anybody else was also present at that time but as far as he knows, only the abovesaid persons were present.

65. Much is sought to be made by the respondent about Mr. P.N. Khanna not mentioning the presence of Mr. Latifi who in his testimony in rebuttal, stated that he had gone to Tis Hazari Court Complex, Delhi with the Testator on 30.10.1985.

66. Not mentioning of Mr. Latifi‟s presence at the Tis Hazari Court Complex, Delhi has nothing to do with the basic issue about execution and attestation of the Will by two witnesses. The three essential persons were the Testator and the two witnesses. They have been acknowledged to be present there. Two members of the Testator‟s staff, excluding the driver, have been acknowledged. No suggestion has been put to Mr. P.N. Khanna to the effect that he was in fact not present at Tis Hazari Court Complex, on the said date.

67. Neither in Mr. Khanna‟s statement nor of any other party, is it recorded that Mr. Latifi had gone in a professional capacity, which would require him to be active in the entire process. He was a Senior Advocate, who in keeping with his designation, kept a certain degree of distance and aloofness from the actual process of execution of the Will and to its being deposited in a sealed cover with the Registrar. Nothing adverse can be drawn from his statement that: ―I cannot on this point admit or say as to who was present at the time of the signing of the Will by Raja Bahadur Sardar Sahib. I cannot say at what place this Will was signed by him‖.

68. Mr. Latifi was produced by the appellants as PW-3 to bring his rebuttal evidence primarily regarding the evidence of Mr. R.K. Singh‟s testimony that he was not associated with the drafting of the Will. Since Mr. Latifi was present at the court only as a personal friend of the Testator, it is not inconceivable that he would have kept an aloof distance apropos the actual execution and presentation of the document as of 30.10.1985. This was expected of the Senior Advocate, who, in any case, was not engaged for the aforesaid purpose. Surely he was not supposed to be a witness to the signing of the Will or to keep a track of all who were present at the time of execution or presentation of the Will. His mere presence at the Tis Hazari Court Complex, Delhi for the Late Raja Bahadur Sardar Sahib cannot be assumed that he was necessarily to witness or corroborate everything what had happened at the site. It can be inferred that the Testator wanted to be doubly sure that the execution of the Will and its presentation deposit before the Registrar went through smoothly, therefore, the executor had both his advisors: legal advisor-Mr. Latifi and financial advisor and C.A.-Mr. P.N. Khanna, present at the time of execution and presentation of the Will to the Registrar of Assurances. Furthermore, aloofness on the said date was also in keeping with the distance an Executor is required to maintain apropos a Will.

69. Therefore, the findings of the impugned order in this regard cannot be sustained. Duplicate Will cannot be taken as the Original Will:

70. Another objection for not granting probate was that the Will and Testament marked „Duplicate‟ cannot be taken to be as Original Will and, therefore, it is not proven in accordance with law.

71. The learned Senior Advocate for the State of Rajasthan submits that the probate proceedings can be sustained only on the basis of the Original Will and not on a copy of the Duplicate Will. What was filed was the latter and not the Original Will. He says that no secondary evidence can be led unless and until foundation is laid as to why the primary evidence is not available. The original not having been produced, the case could not proceed.[5]

72. This argument is misconceived. It could not be the intent of the petitioner to propound the original Duplicate annexed to the probate petition as the Original Will, because the latter was lying enclosed in a sealed cover with the Registrar.

73. The said duplicate was merely produced to submit to the court that a Will with the same content has been deposited in a sealed cover with the Registrar. Doubtless, no certified copy can be produced of a

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;‖ Loss of the original, therefore, was required to be proved.

32. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the original will beyond all reasonable doubt. His testimony in that behalf remained uncorroborated.…‖ document deposited in a sealed cover with the Registrar. However, the sealed cover as well as the document itself could be produced by the that the petitioner had produced the Duplicate with the petition. This is reinforced by I.A. No. 7618/1987 moved by the appellant seeking production of the Original Will lying in deposit with the Registrar.

74. As has been noted above, the original Duplicate copy of the Will was produced with the petition and the Will contained in a sealed envelope, which was produced from the office of the Registrar, pursuant to the above order, was opened in the court, seen and then resealed. It was identical to the Will propounded by the appellant. It had been kept secured with the Registrar by the Testator as an exercise in caution and prudence, so that the original would be made available at the appropriate time.

75. The sealed envelope brought from the office of the Registrar does not bear the word „Duplicate‟ nor does the Will which came out of it. The latter was the original Will signed by the Testator, sealed and deposited. An identical copy of the same marked „Duplicate‟ was executed and handed over to Mr. Danial Latifi, who upon demise of the Testator gave it to Mr. Romesh Thapar for appropriate action. If the original Will had already been kept with the Office of the have been produced and there could be no suspicion in this regard. The respondent‟s contention is therefore untenable and is rejected. Apropos withdrawal of the objections by the Objectors:

76. Some of the objectors included Mr. Surender Singh and Mr. Rajinder Singh, purporting to be the cognates/agnates of the Testator in the Probate Case. During the pendency, they filed applications under Order XXIII Rule 1 CPC seeking withdrawal of their objections, which were duly supported by their affidavits, wherein they admitted and accepted the execution and contents of the same as the last Will and Testament of Late Raja Bahadur Sardar Singh of Khetri. The relevant portion of the affidavit, inter alia, reads as under:- ―6. That in view of the aforesaid admission, the applicantobjector is not interest in pursuing the objection petition filed by him in the present probate proceedings on 06.07.87 and the applicant-objector has absolutely no objection in grant of probate/letters of administration as the case may be in favour of the present petitioners- Executors of the probate proceedings.‖

77. The impugned order has found it suspicious that all the objectors withdrew their objections and that there were some „forces behind the scene‟. However, these „suspicious forces‟ were never specified. It ignored the fact that with the passage of time, parties to a case may have accepted to not pursue the matter or they subsequently concluded that the probate case was truthful. It is not for the court to go about looking for ghosts where none exist. Once the applications seeking unconditional withdrawal were allowed, with no objection from any party, including the State of Rajasthan, to draw adverse inference on the basis thereof would not be sustainable. Production of Envelope not sufficient:

78. For the first time, in this appeal, the State of Rajasthan had stated that mere production of the cover of the original envelope containing the Will is not sufficient to prove the Will having been executed as per law.

79. The contention, in any event, is misconceived. That the Will has been executed as per law, i.e. as per the requirements of Section 63 of the Succession Act, is something already established by uncontroverted evidence of PW[1], PW[2], RW[7], and even corroborated by the testimony of PW[3]. The respondent‟s contention is rejected. R.K Singh’s Testimony:

80. As is apparent, much of the impugned order derives sustenance from the testimony of PW[8], Mr. R.K. Singh.

81. Firstly, Mr. R.K. Singh has deposed that he never met the Testator or PW[1]. This is belied by three pieces of evidence: (i) the testimony of PW[1] that Mr. R.K. Singh was present when the Will and the Codicil were respectively executed by the Testator, (ii) the testimony of PW[2] to the same effect, and (iii) the testimony of RW[7] read with the contents of the Will, and the cover in which it was sealed.

82. The original cover of the envelope clearly records his signatures alongside the signatures of Mr. P.N. Khanna and the Testator. Mr. R.K. Singh had signed the envelope alongside that of Mr. P.N. Khanna and of the Testator and Mr. G.K. Dixit, Registrar. The position of the signatures of Mr. R.K. Singh is only after it was written that it contains Will of Late Raja Sardar Bahadur Singh of Khetri, R/o 5, Sardar Patel Road, New Delhi, who was identified by Mr. P.N. Khanna, S/o Mr. Bharat Ram, r/o 14/15 – Connaught Place, New Delhi and Sh. R.K.Singh, Advocate and then the sealed cover was deposited by the Testator himself on 30.10.1985 before the Registrar, Delhi at Tis Hazari. The signatures of the Testator and Mr. G.K. Dixit, text and the signatures of the two witnesses are on the side of the sealed cover.

83. Surely, Mr. R.K.Singh (RW[8]) could not have signed on the side unless the text was written and signed by or on behalf of the Testator. Furthermore, the Registrar would not have signed it unless the Testator had been identified to him by the witnesses. Each of them are presumed in law, to have been present before the Registrar at the time of the submission of the sealed cover containing the Testator‟s Will.

84. The record from the Registrar office shows that Mr. R.K. Singh (RW[8]) was present in the office of the Registrar. He was a lawyer and is expected to have known the document he was signing. His testimony to the contrary becomes more unbelievable when he responds with a “No” to the question “Do you read any paper before signing?”

85. The Will bears the signatures of Mr. R.K. Singh on each of three pages. On each page, the signatures of the Testator had been underlined possibly by the Testator himself and it is only thereafter that Mr. R.K. Singh had signed as the second witness on the document. The document clearly reads as ‗the last Will and Testament‘ of the Testator. No lawyer would sign a document unless he was fully aware as to what is written therein. The court finds Mr. R.K. Singh‟s deposition apropos his signing the document inspires no confidence. The said deposition, inter alia, reads as under: ―C.Q. Did you read any paper before signing? Ans. No‘ *** I was not aware of the nature of the document what I was signing. I did not make any enquiry as to what was the nature of the document what I was signing. I was asked by Mr. Latifi to go to Sardar Patel Marg and to sign whatever documents I was asked to sign. C.Q. Did you across your mind that you may be signing a document which will be used against you? Ans. NO. 86. The testimonies of two witnesses have gone uncontroverted in cross-examination, as regards the execution and deposit of the Will. The testimony of Mr. R.K. Singh, an Advocate with a standing of about 8 years, who was working in the Law Commission of India, Ministry of Law & Justice, Government of India, two years later as an Assistant Officer, and who at the relevant time was working as a Junior Law Officer in the Ministry of Agriculture, Government of India, inspires absolutely no confidence. Since it is inconceivable that an advocate would have signed a document and thereafter also sign the envelope in which the document is sealed, despite not being aware of its contents, or worse, when the contents of the documents are purportedly covered/hidden by another person.

87. The statement that he was associated with the person who drafted the Will of the Testator and the former had asked him to sign the same, did not entitle him to say that he did not see the Testator signing the document, nor as testified by PW[1]. A lawyer retains his independence and individuality at all times and is a privileged member of society. It is inconceivable that a lawyer, with an experience of about eight years, would append his signature to documents without knowing what is written in it. The record of the Registrar clearly shows that the three relevant witnesses, one the Testator and two witnesses, namely, Mr. P.N. Khanna (PW[1]) and Mr. R.K. Singh (RW[8]) were present before the Registrar. Having established the same, for Mr. R.K. Singh to resile from his signatures in attestation of the Will is unusual to say the least. The only thing that can be inferred is that for reasons best known to Mr. R.K. Singh, who only appeared upon repeated summons being issued to him is that he was a reluctant witness. What occasioned his reluctance is not for the court to dwell upon.

88. Mr. R.K. Singh was a lawyer and had worked with Mr. Latifi, Senior Advocate of the Supreme Court. The latter had raised a bill in 1985-86 of Rs. 1000 for working on a Will. He specifically worked at the Law Commission, and was selected as Junior Law Officer in the Ministry of Agriculture. For a person of his background, it would be expected that he has a fair legal experience and would not sign blindly on papers, all the more if he is to present himself before the Registrar of Assurances.

89. Mr. R.K. Singh‟s testimony is further suspect because though he deposed that Mr. Latifi did not assign him the drafting of the Will and that Mr. Latifi did not pay a sum of Rs. 1000/- to him to draft the Will, the same is controverted by the presentation of two documents, i.e. bill of Rs.1,000/- raised by Mr. Latifi upon the Testator apropos Mr. R.K. Singh‟s assistance, and payment of the said amount to Mr. R.K. Singh by a cheque. The bill raised on the Testator was a contemporaneous document and issued before the death of the Testator. Mr. Latifi had proved that he had paid Mr. R.K. Singh by cheque for the aforesaid work. His testimony, in this regard, reads as under: ―…. Q. Did you ask (Mr. R.K. Singh) to help you in drafting the will of Raja of Khetri Raja Sardar Bahadur Singh Sahib? Ans. Yes. I sought his assistance in drafting as well as in engrossing and in the execution of the will.

90. Notably, Mr. Latifi was not cross-examined regarding payment to Mr. R.K. Singh.

91. In the opinion of this Court, Mr. R.K. Singh‟s testimony is wholly suspect being contrary to all rationale and logic of a reasonable person. In any event, it cannot be the basis for disbelieving uncontroverted evidence both oral and documentary, by both private as well as official witnesses. Mr. R.K. Singh‟s testimony cannot controvert matters of record.

92. The impugned order, in our view, has erred in placing undue reliance on the testimony of Mr. R.K. Singh, and in relying on the same to wholly nullify testimonies of PW[1], PW[2] and more importantly, RW[7], all of whose testimonies remain unimpeached in cross-examination. Suspicious Circumstances:

93. The impugned order has referred to some alleged suspicious circumstances. What are these circumstances are not spelt-out substantially. In Murthy vs. C. Saradambal (2022) 3 SCC 209, the Supreme Court has held some illustrations of suspicious circumstances as under:

35. In Bharpur Singh and others v. Shamsher Singh [2009 (3) SCC 687], at Para 23, this court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner:-

(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

(iv) The dispositions may not appear to be the result of the Testator's free will and mind.

(v) The propounder takes a prominent part in the execution of the will.

(vi) The Testator used to sign blank papers.

(vii) The will did not see the light of the day for long.

(viii) Incorrect recitals of essential facts."

37. In Naranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [(2006) 13 SCC 433], in Paras 34 to 37, this court has observed as under:- ―34. There are several circumstances which would have been held to be described by this court as suspicious circumstances:

(i) when a doubt is created in regard to the condition of mind of the Testator despite his signature on the will;

(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;

(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit….‖

94. What constitutes a suspicious circumstance was considered by a Court of Appeal in Estate of Lavinia Musgrove (1927) P. 264. The case dealt with a Will not being brought to light for nearly 20 years by the Executor, who was also the mother and sole beneficiary under the Will. It was not found to be a suspicious circumstance for the following reasons: ―… the will was placed in the custody of the mother and executrix. There is no suspicion attaching to the will itself, or to its terms. If the will had been produced immediately upon the death of Lavinia in 1905, no exception could have been taken to it. The suspicion that the judge refers to is a suspicion as to the conduct of Emma Mercy Dunmall and her forbearance to put the will forward. But if the will was once a good will it cannot be disposed of except in one of the authorized weays of revocation: see ss. 18, 19 and 20 of the Wills Act. … If it was once a will, and as such was handed over to the custody of the executrix – and no more effective act could b done by a testatrix in support of it- it remains her will, and no mere conduct of the executrix subsequently will stop its effect. The judge was satisfied that Lavinia had entirely forgotten the document. Forgetfulness – even if surprising – may explain the inaction of Emma Mercy Dunmall. To import more into this inaction appears to me to be acting upon a presumption arising from conjecture only. …. What of the suspicion? It is not such as attaches to the document itself in the sense of which Sir James Wilde uses the term in Guardhouse v. Blackburn, or as it arose in Tyrrell v. Painton in the preparation of the will. The wide definition of suspicion stated by Lindley L.J. in the latter case, that it ―extends to all cases in which circumstances exist which excite the suspicion of the court,‖ appears to have been used in reference to the preparation of the will, its intrinsic terms, and the circumstances surrounding its preparation and execution, and Davey L.J. seems to have had the same matters in mind. Their judgments were not intended to later, but to affirm the principles laid down in cases I have cited. They do not alter what Lindley L.J. said in Harris v. Knight. After carefully considering the authorities and following the rules stated in Barry v. Butlin and Guardhouse v. Blackburn, I am of opinion that the plaintiff is entitled to have the maxim applied in favour of this document, complete in form, unexceptional in purpose, about which no suspicion can be aroused until a later date, and that not attaching to the will, or to the testatrix, but to the executrix. It is a suspicion that there must have been some condition subsequent, under which a valid testamentary document ceased to be effective. The onus of proof of this would appear to lie on the opponent of the grant of probate, for once the will has been proved to have been duly executed, the burden of proving that it was revoked lies on those who set up the revocation, and in the absence of evidence proving it, revocation will not be presumed. That is laid down by Lord Penzance in Benson v. Benson. … Now there is nothing in the preparation or contents of the will to raise a suspicion that it did not express the mind of the testatrix. The sole peculiarity is the subsequent fact that for many years after knowledge of the detah of the testatrix the executrix did not take any steps to prove a will which have large benefits to her daughters. I cannot think that this fact is analogous to the facts in Tyrrell v. Painton or the previous similar cases, or that it justifies such an inference as was drawn there. The learned judge in attributing the inaction of the executrix to knowledge of some defeat in the document was, in my judgment, conjecturing only….‖

95. The plausibility of Mr. Parmeshwar Prashad manipulating the Testator is highly unlikely if not implausible because the latter had been a Member of the Constituent Assembly, had assisted in the drafting of the Indian Constitution, had been a Member of Parliament, had been a diplomat as India‟s Ambassador to Laos, was well educated, and had the benefit of advice and assistance of Senior legal professional and a leading Chartered Accountant, the latter was also Director of the Reserve Bank of India and on the board of many other business and charitable organizations, has already been discussed hereinabove. It does not create any suspicious circumstance. It has also been noted above that the non-assigning of reasons by the objectors to withdraw their objections cannot constitute a suspicious circumstance because prudence, good sense and truth can dawn upon an individual at any time. Indeed, sometimes, with passage of time, things appear in an altered perspective and it is possible that the objectors found good reason not to pursue their objections to the probate petition. It is not for the court to examine as to what the reasons were.

96. The non-examination of Mr. Gokul Anand did not create a suspicious circumstance. As noted hereinabove, the objectors had sought to summon Mr. Gokul Anand as a witness, their request was allowed by the learned Trial court but was set aside by the Division Bench in an appeal preferred by the appellants. This conclusively shows that the non-examination of Mr. Gokul Anand could not be the basis of any adverse inference or be deemed to be a suspicious circumstance. Reference to Mr. Gokul Anand is, therefore, unnecessary and of no consequence. Notably the objectors had not mentioned Mr. Gokul Anand in the list of witnesses on 24.09.1988. It is only after the evidence of the appellant had been completed that Mr. Gokul Anand was sought to be examined. The objector‟s application was rightly rejected by the Division Bench. Conclusion:

97. What emanates from the preceding discussion is that a Will was executed at Tis Hazari on 13.10.1985 by the Testator in the presence of two attesting witnesses, Mr. P.N. Khanna and Mr. R.K. Singh. Thus, compliance with Section 63 of the Succession Act is proved. The said document was sealed in an envelope and presented to the Testament of the Testator who had been identified by Mr. P.N. Khanna and Mr. R.K. Singh. The said envelope also bore the signatures of the Testator as well as the Registrar. This is a clear declaration that the envelope contained the said document and the Testator has been identified to the Registrar by two witnesses. This also ensures compliance with Section 68 of Evidence Act in proving the Will. When the original Will was opened and seen, it also bore the signatures of the Testator as well as the aforementioned two witnesses on each of the three pages of the Will. Mr. P.N. Khanna‟s testimony apropos the execution of the Will in his presence as well as in the presence of Mr. R.K. Singh at Tis Hazari Court Complex, Delhi has gone unrebutted. As regards Mr. R.K. Singh, there is a presumption that he was present at the Office of the Registrar and had witnessed the entire process of the said execution, and had also identified the Testator of the Will before the Registrar and in testimony thereof had signed on the sealed envelope, which was then deposited with the Registrar.

98. His testimony regarding not receiving money from Mr. Latifi too stands rebutted by Mr. Latifi‟s testimony and the documents produced by him. The payment in favour of Mr. R.K. Singh had been recorded in the counter-foil of the cheque book brought to the court by Mr. Latifi in his cross-examination.

99. As has been noted hereinabove, the substratum of refusing probate cannot be the testimony of an unreliable witness, viz Mr. R.K. Singh. In any event, once compliance with the requirements of Section 63 of Succession Act is proven, and the proof of the Will and Codicil is in terms of Section 68 of the Evidence Act, there is no bar to this court allowing Test Cas. No. 26/1987.

100. From the preceding discussion, it is clearly established that the Will was executed by Late Raja Bahadur Sardar Sahib and it stands duly proven. In the circumstances, the impugned order is set aside and probate is granted to Lord Northbrook. FAO(OS) 348/2012 is allowed and disposed-off in the above terms.

101. In view of the above, FAO(OS) 347/2012 and FAO(OS) 211/2013 are infructuous and are disposed-off accordingly.

102. In the circumstances, parties shall bear their own costs.

NAJMI WAZIRI, J. VIKAS MAHAJAN, J. JULY 11, 2023 KK/SB