Harjeet Kaur & Anr v. State & Ors

14. Learned counsel for respondent No.2 repelled the contentions by drawing attention to the testimony of Late Smt. Harjeet Kaur where it has come that though the testator had suffered an accident in the year 1991, he fully recovered, as he was not only going to the bank for operating his accounts but also operated the chit fund. It was also submitted that there are no medical documents on record to show that the testator was ever treated or admitted in a hospital between the year 1991 and the execution of the Will on 10.11.1998. While answering the contention regarding the exclusion of the appellant in the Will, learned counsel referred to the testimony of Late Smt. Harjeet Kaur where it has been stated that the appellant was already owning a property in Khyala. It was submitted that the said circumstance alognwith the fact that respondent No.2 had fallen sick and suffered a paralytic stroke, had weighed in the mind of testator. On the aspect of non-impleading the widow of Late S. Harpinder Singh, reference was again made to the testimony of Late Smt. Harjeet Kaur to submit that Late S. Harpinder Singh had predeceased the testator. It was further submitted that his wife got re-married within three months of his death and her whereabouts are not known. Further, reliance was placed on Section 21 of the Hindu Succession Act, which remained in force till 09.09.2005, to contend that when the succession opened up in the year 2001 on the death of the Testator, the widow late Late S. Harpinder Singh, having already re-married was divested of her rights.

15. In support of the submissions, learned counsel for respondent No.2 placed reliance on the decisions in H. Venkatachalan Iyengar v. B.N. Thimmajamma and Ors. reported as AIR 1959 SC 443, Shashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee Since Deceased & After Him His Legal Representatives & Ors. reported as AIR 1964 SC 529, K.L. Malhotra v. Sudershan Kumari & Ors. reported as 149 (2008) Delhi Law Times 783, Prem Singh & Ors. v. Birbal & Ors. reported as (2006) 5 SCC 353, Prem Bhatnagar v. Shri Ravi Mohan Bhatnagar & Ors. reported as AIR 2013 Delhi 20, Nirmala Handa v. Krishna Kaura reported as MANU/DE/3040/2014 and Velamuri Venkata Sivaprasad

(D) By Lrs. V. Kothuri Venkateswarlu (D) By Lrs. Ors. reported as

MANU/SC/0740/1999.

16. Having heard learned counsels for the parties and gone through the material placed on record, I find no merit in the appeal for the reasons stated hereinafter.

17. Pithily put, while scrutinising execution of a Will, a rational approach is required to be adopted by the Court. The Court must satisfy its conscience before passing any order granting probate, as existence of suspicious circumstances significantly impacts the propounder’s case. In this regard, the Supreme Court in Anil Kak v. Kumari Sharada Raje and Others reported as (2008) 7 SCC 695 has opined as under:

18. Later, in Leela Rajagopal and Others v. Kamala Menon Cocharan and Others reported as (2014) 15 SCC 570, the Supreme Court further opined as under:

its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us.”

19. Recently, while traversing the law and referring to Bharpur Singh and Others v. Shamsher Singh reported as (2009) 3 SCC 687, the Supreme Court in Murthy and Others v. C. Saradambal and Others reported as (2022) 3 SCC 209 reiterated a few suspicious circumstances as being illustrative, but not exhaustive, in the following manner:

20. Pertinently, the propounder in order to prove his case, examined one of the attesting witnesses. The relevant statutory provision i.e., Section 68 of the Indian Evidence Act, 1972 reads thus:

21. Needless to state, a Will has to be proved like any other document, subject to the special requirements of attestation provided in Section 63 of the Act. The test to be applied would be the test of satisfaction of a prudent mind. What is required to be seen is whether the propounder of the Will has produced satisfactory evidence that the Will was signed by the testator who, at the relevant time, was in a sound and disposing state of mind; understood the nature and effect of the disposition and had put his thumb impression of his own free will.

22. In this regard, the Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma and Others reported as 1959 Supp (1) SCR 426, held as under:-

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

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

23. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Others reported as (2006) 13 SCC 433, while explaining the mode and manner in which execution of an unprivileged Will is to be proved, the Supreme Court held as under:-

attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.

33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedage and Sridevi v. Jayaraja Shetty.) Subject to above, proof of a will does not ordinarily differ from that of proving any other document."

24. In the present case, the appellant, while drawing attention to the testimony of Late Smt. Harjeet Kaur has referred to the instance of testator suffering an accident and going into coma as a suspicious circumstance. In this regard, suffice it to note that on a plain reading of the testimony of Late Smt. Harjeet Kaur it appears that though she had stated that the testator was the owner of the subject property (having purchased it from his own funds), it was also stated that after the accident, the testator was never admitted in any hospital. Although in her deposition, Late Smt. Harjeet Kaur stated that after the accident, the testator was not in a fit state of mind, it is also evident from other points in the deposition that she had stated that after the accident, the testator was behaving properly and only sometimes he was erratic. She also stated that the testator was operating both the bank accounts on his own and after the accident one of the family members used to accompany him.

25. At this stage, it is deemed expedient to refer to the statement of the appellant where he also admitted the suggestion that his father himself was operating both his accounts till his death. Even during the hearing, the Court had put a query to the learned counsel for the appellant if any medical records were placed on the record which show as to whether the testator was ever treated or admitted in any hospital after the year 1991. The answer was in the negative.

26. Notably, on the other hand, all the four daughters of the testator have filed their affidavits stating that at the time of execution of the Will, the testator was of sound health and disposing mind. It was further stated that the Will was executed by the testator without any undue pressure or coercion by anyone. They gave their no-objection in respect of grant of probate in favour of respondent No.2 and were not even cross-examined.

27. Besides, the testimony of attesting witness-S. Hardev Singh would also show that he testified to the fact that the testator had executed the Will in his presence. He identified his signatures as well as signatures of the testator on the Will. He deposed that the Will was produced before the Sub-Registrar for registration in his presence. The Will was also signed on the backside by him at point B[2] to B[2]. He also identified his thumb impression at point B[3] to B[3] before the Sub-Registrar as well as those of the second attesting witness-Sh. J.B. Malik. Pertinently, S. Hardev Singh stated that at the time of the execution, the testator was in a fit state of mind and walking with assistance. Although, the appellant has raised a doubt as to the testimony of attesting witness-S. Hardev Singh by stating that he had shown lack of knowledge of the testator’s accident/state of coma in the year 1991, in the opinion of this Court that would not create any dent on the testimony.

28. As such, in the absence of any satisfactory explanation given by the appellant, or medical documents, and further in light of the above noted testimonies, the contention that the testator’s accident in the year 1991 implied that he was not in a fit state of mind at the time of execution of the Will in the year 1998 is farfetched and has no merit in it.

29. Coming to the next contention that the testator had not given any reason for exclusion of other legal heirs, it is observed that in the testimony of Late Smt. Harjeet Kaur as well as the appellant, it has come that the appellant was the owner of another plot in Khyala. Accordingly, I find merit in the submission of the learned counsel for respondent No.2 that the same would have weighed in mind of the testator while excluding the appellant from his estate.

30. The contention for non-impleading the wife of Late S. Harpinder Singh is also of no avail to the appellant. As noted hereinabove, Late S. Harpinder Singh had predeceased the testator way back on 24.04.1989. It has come in the testimonies of parties that after Late S. Harpinder Singh had expired, his wife got remarried and her whereabouts were not known to anyone. Even otherwise, a public notice was issued in furtherance of the petition of respondent No.2, to which no objection was filed by any member of the public, besides the appellant and Late Smt. Harjeet Kaur. The reliance placed by the appellant on the decision in Harnam Singh (Supra) and Kavita Kanwar (Supra) is also found misplaced. While in the former, the testimony of scribe of the Will and the two attesting witnesses was disbelieved and, in the latter, the suspicious circumstances were opined to be unexplained. The same is not the case in the present appeal and hence, the appellant’s reliance on the aforesaid decisions is of no avail to him.

31. Accordingly, for the reasons stated hereinabove, I find that none of the circumstances pointed out by the learned counsel for the appellant create any doubt on the genuineness and due execution of the Will. No ground is made out to entertain the present appeal. The impugned order is upheld and the appeal stands dismissed.

JUDGE APRIL 06, 2023