Dinesh Maidasani v. State

12. It is further submitted that the petitioner filed his evidence affidavit as PW-3 on 09.02.2015, and identified the signatures of the deceased. The petitioner in his evidence affidavit reiterated the facts as mentioned in the petition filed by him. The petitioner in his evidence affidavit has also narrated the chain of events that took place during the lifetime of his deceased father and mother, explaining the love and affection shown by him towards his parents.

13. It is further submitted that the Petitioner summoned officials from Punjab National Bank, Ashok Vihar (PW-4) to prove the opening of savings bank account no. 24899 and also to show all the entries in the passbook from 01.10.1994 till the last entry in the said account.

14. The petitioner also summoned officials from Punjab National Bank, Kamla Nagar (PW-5) to prove the opening of savings account NO. 01248997 and also to show all the entries in the passbook from 01.10.1994 till the last entry in the said account.

15. It is submitted that in view of the above, the Petitioner discharged his onus and proved the Will in accordance with law, through the attesting witnesses of the subject Will.

16. As per the ruling of the Hon'ble Supreme Court in the case of Jagdish Chand Sharma vs Narain Singh Saini 2015 (8) SCC 615: "That a propounder has to demonstrate that the Will was signed by the testator and that he was at the relevant time in a sound disposing state of mind and that he, understood the nature and effect of the disposition and further that he had put his signature to the testament on his own free will and that he had signed it in presence of two witnesses who had attested it in presence and in the presence of each other, in order to discharge his onus to prove due execution."

17. In light of the judgement cited above the petitioner has been able to prove the Will of the deceased as his last and final testament and therefore respectfully submits that he has been able to successfully discharge the onus cast upon him vide issue no.1. The petitioner further respectfully submits that in view of the above submission there is no impediment in grant of probate in his favour, especially in view of the fact that the objections filed were either withdrawn or abandoned by the contesting relations.

18. Heard learned counsel for the petitioner.

19. Before entering into the merits of the case, it is pertinent to take note of certain facts that transpired during the pendency of the instant proceedings before the Court.

20. As submitted by the learned counsel for the petitioner, the objections to the present petition were raised by Mr. Sunil Maidasani, the son of the deceased/Relation no.2 but the same were withdrawn vide IA. no. 9552 of 2018 after a mutual settlement between them. This Court has perused the Order dated 23.07.2018 wherein the said application was allowed and objections of Relation no. 2 were dismissed as withdrawn.

21. It is also evident that the objections to the present petition were also raised by Ms. Aashima Gurnani, Mr. Rahul Gurnani and Smt. Neeta Chugh (Relation no.s 3 to 5) but the same has been abandoned by them. This court has perused the previous orders passed which bear testimony to the fact that they have not been appearing either personally or through counsel for past few years. It is also on record that due to their nonpursuing of the instant matter, their right to lead evidence was closed on 14.01.2019 by this Court.

22. Mr. Sunil Maidasani, the son of the deceased/Relation no.2 had also filed a partition suit bearing no. CS (OS) 1918/2011 praying for partition of House no. 73, Nimri Colony, Phase-1, Near Ashok Vihar Phase-IV, New Delhi-110052 amongst the legal heirs on the ground that the deceased died intestate.

23. During the course of the proceedings, the suit no. CS (OS) 1918/2011 and TEST. CAS. 63/2011 were consolidated vide order dated 05.08.2014 for the purpose of evidence and common issues were framed by this Court as reproduced hereunder: “1. Whether the Will dated 25.08.1999 propounded by Dinesh Maidasani is genuine and valid Will of Late Sh. Gobind Ram Maidasani and was executed by him voluntarily in a sound and disposing mind? (Onus of proof on Dinesh Maidasani)

2. Whether CS (OS) 1918/2011 has not been properly valued for the purpose of court fee and jurisdiction?

3. Whether the Plaintiff is entitled to partition of the suit property?

4. Relief.”

24. Before dealing with the issues at hand, it is pertinent to refer to the Order dated 19.07.2018 of this Court, wherein the CS(OS) 1918/2011 was dismissed as withdrawn. The same is reproduced hereunder:

25. Since, the said suit was dismissed as withdrawn and the issues NO. 2 and 3 qua the suit CS (OS) 1918/2011 and are not required to be adjudicated. The issue that thus remains to be adjudicated is regarding the issue of onus of proof on the petitioner as in whether the Will dated 25.08.1999 is genuine and valid Will of the deceased and was executed by him voluntarily in a sound mind.

26. Before delving into the facts of the case for the purpose of adjudication, it is pertinent to refer to the law of testamentary succession.

27. The law of testamentary succession is codified under the Indian Succession Act. Will is a testamentary document that comes into operation after the demise of the testator. The peculiar nature of such a document has led to solemn provisions in the statutes for making of a Will and for its proof in a Court of law. Section 59 of the Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by Will. A Will or any portion thereof, the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator, is declared to be void under Section 61 of the Succession Act; and further, Section 62 of the Succession Act enables the maker of a Will to make or alter the same at any time when he is competent to dispose of his property by Will. As per Section 63 of the Succession Act, the Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence as per the requirements of Section 68 of the Evidence Act.

28. Elaborate provisions have been made in Chapter VI of Part VI of the Succession Act (Sections 74 to 111), for construction of Wills which, in their sum and substance, make the intention of legislature clear that any irrelevant inaccurate description or error is not to operate against the Will; and approach has to be to give effect to a Will once it is found to have been executed in the sound state of mind by the testator while exercising his own free will.

29. Part IX of the Act deals with the grant of Probate/Letter of Administration. As a matter of practice for proving a Will, a petition is filed before the competent court for the grant of probate/letters of administration. After the petitioner discharges the initial burden of proving the Will by showing compliance of the provisions of the Act and calling the attesting witness(es), the court calls upon the contesting party to state its objections to the validity of the Will.

30. Having dealt with the Scheme of the Act, it is now pertinent to refer to the principles settled by the judgments regarding the process of examination of a Will before a Court of law.

31. In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma: AIR 1959 SC 443, the Hon’ble Supreme Court enunciated a few fundamental guiding principles that have consistently been followed and applied, the synthesis and exposition of which has been reproduced hereunder:- “18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. S. 67 and 68, Evidence Act are relevant for this purpose. Under S. 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 Ss. 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, Ss. 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 S. 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. ***

22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence…”

32. It is evident that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine.

33. The law relating to the manner and onus of proof and also the duty cast upon the court while dealing with a case based upon a Will has been examined in considerable detail in a catena of judgments including the Constitution Bench judgment in Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.: AIR 1964 SC 529, and it was held as under: "The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations."

34. In the case of Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs. and Ors.: AIR 1995 SC 1684, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, there is no wonder that the natural heirs would be debarred in every case of Will. A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in earlier reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will.

35. It is a settled principle of law that probate proceeding is not merely inter-partes proceeding but leads to judgment in rem and, therefore, even when no one contests, it does not ipso facto lead to grant of probate. The probate is granted only on proof of Will as also on removal of suspicious circumstances, if there be any, to the final satisfaction of the conscience of the Court.

36. In the case of Shivakumar & Ors. v. Sharanabasppa & Ors., Civil Appeal No. 6076 of 2009, decided by the Hon’ble Supreme Court on 24.04.2020, summarizes the principles governing the adjudicatory process concerning proof of a Will as follows:–

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 above-noted 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 circumstance 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.

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?

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.”

37. Having considered the provisions pertaining to the proof of Will as well as the various landmark judgments discussed hereinabove, this Court shall now proceed to apply the settled principles in the facts and circumstances of the instant case.

38. The only issue that now remains to be adjudicated by this Court is whether the Will dated 25.08.1999 is genuine and valid Will of the deceased and was executed by him voluntarily in a sound mind.

39. For the said purpose, it is pertinent to refer to the evidence adduced by the witnesses and by the attestants of the Will to prove the execution of the Will, proof of testamentary capacity and the signature of the testator. The petitioner, in order to prove his case, led evidence of 5 witnesses as detailed hereunder.

40. Jaswant Lal Aneja (PW-1) filed his evidence affidavit dated 09.02.2015 and deposed to the fact that he was a close friend of the deceased and that the deceased had the Will drafted as per his own wishes. He further identified his signatures as well as the signatures of the deceased as well as the signatures of Amar Nath Rustagi/PW-2.

41. PW-2 filed his evidence affidavit dated 09.02.2015 and stated therein that he had been a close family friend of the deceased and that the deceased showed them the Will which had been drafted as per his wishes. He further stated that the deceased signed the aforesaid Will in question in his and PW-1’s presence. He further identified his signatures as well as the signatures of the deceased and PW-1 on the subject Will.

42. The petitioner filed his evidence affidavit as PW-3 on 09.02.2015, and identified the signatures of the deceased. The petitioner in his evidence affidavit reiterated the facts as mentioned in the petition filed by him. The petitioner in his evidence affidavit has also narrated the chain of events that took place during the lifetime of his deceased father and mother, explaining the love and affection shown by him towards his parents.

43. The Petitioner summoned officials from Punjab National Bank, Ashok Vihar (PW-4) and Punjab National Bank, Kamla Nagar (PW-5) which prove the opening of savings bank accounts in question and also producing the entries in the passbook from 01.10.1994 till the last entry in the said account.

44. As discussed above, the mode of proving a Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus.

45. However, in case of suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.

46. In the instant case, by way of the evidence adduced as discussed hereinabove, it is the opinion of the Court that the execution of the Will, proof of testamentary capacity and the signature of the testator is established. As such, there are no objections alive due to their withdrawal or due to non-pursuance and abandonment, as well as there are no unexplained suspicious circumstances that would eclipse the validity of the Will and create a hurdle in the granting of probate.

47. In light of the aforesaid, this Court is inclined to conclude that the petitioner has been able to prove the Will of the deceased as his last and final testament and thus successfully discharged his onus. There being no other impediment in the grant of probate in his favour, especially in view of the fact that the objections filed were either withdrawn or abandoned by the contesting relations, as well as the conscience of the Court being satisfied as to the validity of the Will, the instant petition stands allowed and the probate in respect of Will dated 25th August 1999 is hereby granted to the petitioner, subject to payment of requisite stamp duty/court fees.

48. The Petitioner shall furnish Administrative Bond with one surety to the satisfaction of the learned Registrar General of this Court.

49. The valuation filed by the Tehsildar concerned is on record.

50. On payment of the requisite court fee and other formalities noted above, the Probate in respect of Will dated 25th August 1999 shall be issued by the Registry.

51. The instant petition accordingly stands disposed of along with pending applications, if any.

52. The order be uploaded on the website forthwith.

JUDGE DECEMBER 20, 2022 Dy/@k