Full Text
HIGH COURT OF DELHI
PROMILA KAPOOR ..... Appellant
Through: Mr. Vaibhav Gaggar, Ms. Sumedha Dang and Mr. Ashit Kapoor, Advocate
Through: Mr. V. D. Pahuja, Advocate for respondent No. 2 alongwith respondent No. 2 in person.
PROMILA KAPOOR ..... Appellant
Through: Mr. Vaibhav Gaggar, Ms. Sumedha Dang and Mr. Ashit Kapoor, Advocate
Through: Mr. V. D. Pahuja, Advocate for respondent No. 1 alongwith respondent No. 1 in person.
JUDGMENT
1. The challenge in both these Appeals arises from the common Judgment & Decree dated 28.11.2005 passed by the learned ADJ-06, Central, Tis Hazari District Courts, New Delhi (hereinafter referred to as “impugned judgment”). Vide the said impugned Judgment, the learned Trial Court was pleased to allow the Probate case no. 124/06 titled as Inder Mohan Nagpal & Ors. vs. State & Ors. filed by Mr. Inder Mohan Nagpal (hereinafter referred to as “Respondent No.1”) and dismissed the Civil suit no. 158/06 titled as Promila Kapoor Vs Inder Mohan Nagpal & Ors filed by Ms.Promila Kapoor (hereinafter referred to as “Appellant”) for declaration, injunction and possession. Facts relevant for the consideration of the present Appeals are as follows:
2. The factual matrix which emerges out of a perusal of the records is that Late Mr. Dina Nath Arora (“the testator”), who was the father of the Appellant, was born in Lahore on 24.12.1901 out of the wedlock of Late Sh.Charan Das Arora and Smt. Ganga Devi. The testator had a sister namely Smt. Jamuna Devi (grandmother of the Respondent No.1). The testator was working with Northwest Railway, Lahore. Post partition of India and Pakistan, he migrated to India and started working with Northern Railway and eventually retired from the Railway Board as a stenographer in the year 1963.
3. The testator married Smt. Malka Devi (the mother of the Appellant) in the year 1928. The couple had two issues out of the said wedlock, the first one being Late Shri Pran Nath Arora and the second one being the Appellant herself.
4. There was personality conflict between the testator and his wife (the mother of the Appellant). These conflicts led to marital discord between the testator and his wife. Hence, the Appellant was taken to her maternal home at Amritsar by her mother. However, the testator continued to live in Delhi in the official accommodation provided to him by the Railway Board. It is the case of the Appellant that the estranged relations between her parents did not affect the relationship between the testator and his children.
5. In lieu of the properties left behind by the testator in West Pakistan, a property no. 2930, Hamilton Road, Delhi, admeasuring about 180-200 square yards with shops on ground floor and residence above was allotted to the testator. The said property was purchased by the testator partly out of his own funds and partly out of the funds of original Defendant No. 2 (father of Respondent No.1).
6. Around the year 1960, EPRRR Cooperative Housing Society Ltd. came up with a scheme, wherein they started allotting plots to the people who were displaced from Pakistan. In order to become the member of the said scheme, the testator was required to swear an Affidavit stating that he or his relatives or any HUF to which he is a member does not own any property in Delhi. Hence, the testator transferred his share in the property No.2939, Hamilton Road, Delhi in favour of Original Defendant No.2. The testator applied for a plot under EPRRR Cooperative Housing Society Ltd and since he fulfilled all the eligibility criteria, he was allotted a piece of land admeasuring approx. 623 Square yard bearing No. BB - 8, Greater Kailash - II, New Delhi (hereinafter referred to as “Suit Property”) in the year 1960. The testator named his children and grandchildren as the nominees for the suit property. Even in the revenue record of Railway Refugees Rehabilitation & House Building Co-operative Society Limited, the testator had given the names of his wife, children and grandchildren as the nominees of his house at Greater Kailash.
7. The testator till his superannuation stayed at his official accommodation at Mir Dara Road and 9, School Lane, New Delhi. The testator retired in the year 1963 and he gave up his official accommodation. Nagpal Family (Family of his sister Late Smt. Jamuna Devi) offered him to stay with them at 2939, Hamilton Road, New Delhi. The testator accepted the said offer and started living with the Nagpal Family.
8. After the retirement, the testator got the building plan sanctioned and constructed a building at the suit property. It was rented out to one Mr. Harbans Singh in the year 1973 and to one Mr. Mohan Lal in the year
1974. The testator retained the possession of the garage where he used to keep some of his belongings. The testator continued to stay with the Nagpal Family.
9. In the meanwhile, testator‟s children got married and started residing with their respective spouses. Testator‟s son Late Sh. Pran Nath Arora joined Merchant Navy and settled in Calcutta. The Appellant (testator‟s daughter) married to Shri Prem Dayal Kapoor, who was then working with the Indian Army as a Captain. The Appellant used to stay at various places depending upon her husband‟s posting.
10. It is the case of the Appellant that the testator used to write letters to his children and meet them whenever he got a chance. It was further stated by the Appellant that the testator used to make telephonic conversation with his children and grandchildren whenever he missed them or wanted to talk to them. It is the case of the Appellant that they frequently visited the testator during his stay with the Nagpal family.
11. The testator continued to stay with the Nagpal family till his death, The testator expired on 07.01.1989. His last rites were performed by his son Late Shri Pran Nath Arora. The Appellant and her family also attended the funeral whereas their mother due to her old age could not attend the funeral and the other rituals.
12. It is the case of the Appellant that even though she contacted the original Defendant No.2 and asked about the property papers of the testator, the original Defendant No.2 informed her that no such property paper was available as they had been disposed of. Hence, on 03.05.89, the Appellant along with her mother and brother filed a Petition for the grant of letter of administration of the estate of the testator on the basis that he died intestate and his wife and children are the beneficiaries of the estate of the testator.
13. At the time of testator‟s death, Sh. Mohan Lal, the tenant was in occupation of the suit property. In the month of January, 1990, Sh.Mohan Lal contacted the Appellant and informed her that the Respondent No.1 attempted twice to forcefully evict him from the suit property and an FIR had been lodged against Respondent No.1 in this regard. During the course of the discussions, Shri Mohan Lal revealed to the Appellant that Respondent No.1 was claiming himself to be owner of the suit property by virtue of a Will dated 29.11.1985. He further informed the Appellant that he was paying rent to the Respondent No.1 after the death of the testator. Shri Mohan Lal handed over a copy of the Will dated 29.11.1985 to the Appellant and that was how the Appellant came to know about the alleged Will dated 29.11.1985 for the first time.
14. The Appellant thereafter informed the DDA, MCD and EPRRR Cooperative House Building Society that the alleged Will dated 29.11.1985 was a forged Will and the Appellant along with her mother and brother being the legal heirs of the testator were the co-owners of the suit property.
15. In pursuance of the public notice issued in the proceedings before the Learned District Judge for the grant of letter of administration, Respondent No.1 filed written statement on 07.02.1990 and set up the Will dated 29.11.1985 claiming that all properties of the testator were bequeathed in his favour.
16. In the meanwhile, Respondent No.1 forcefully evicted Shri Mohan Lal from the suit premises and took the possession of the suit premises.
17. On 22.09.1990, the Appellant issued a legal notice to Sh. Mohan Lal wherein he was informed that the Appellant, along with her mother and brother, are the owners of the suit property. Further, the Appellant challenged the genuineness of the Will dated 23.11.1985.
18. Thereafter, the Appellant along with her mother and brother filed a suit bearing Civil Suit No. 158/06/90 for declaration, injunction and possession for declaring the Will dated 29.11.1985 as null and void and also restraining the Defendants therefrom transferring the suit property in any manner.
19. During the pendency of the present suit, on 28.05.2003, Respondent No.1 filed a Petition being Probate Case No. 124/2006 under Section 275 of the Indian Succession Act for the grant of letter of administration qua the Will dated 29.11.1985.
20. As per the written statement filed by the Respondent No.1, the testator executed two wills dated 29.11.1985, bequeathing all his movable and immovable properties in favour of Respondent No.1. The First Will was executed on 29.11.1985. Having been registered on 02.12.1985, the first Will contains the testator‟s new style of signature (“First Will”).The second Will, being executed on 29.11.1985 and registered on 23.12.1985, contains the old signature of the testator (“Second Will”). Vide these Wills, the testator bequeathed the suit property to Respondent No.1. The second Will had the same contents as that of the first Will but the testator allegedly rectified his error by signing it in his old style of signature. In the second Will, the testator added an additional paragraph stating that the testator had executed his First Will earlier in the day and it was only to remove any ambiguity or objection that the second Will was being signed in the old style of signature so that the legatee might not have any difficulty in enforcing it. On the same day, the testator also visited Dr. Vijay Suri Clinic and got a medical fitness certificate dated 29.11.1985.
21. After getting the medical fitness certificate, the testator went further ahead and wrote a letter dated 29.11.1985 to the tenant of the suit property, Mr. Mohan Lal, informing him about the details of the Will executed by the testator. On the very same day, the testator also made an Affidavit stating that he had made a Will and bequeathed everything in the favour of Mr. Inder Mohan Nagpal.
22. On the pleadings of the parties, the following issues were framed by the learned ADJ in CS No. 158/06: i. ―Whether the document dated 29th November, 1985 is the last Will and testament of Shri Dina Nath Arora? If so, to what effect? ii. If issue no. 1 is proved against the defendants whether the plaintiffs are entitled to the declaration that they are the joint owners of the property No. BB-8, Greater Kailash-II, New Delhi? If so, to what effect? iii. Whether the plaintiffs are entitled to possession? iv. To what relief, if any, are the plaintiffs entitled?‖
23. In the probate case, the following issues were framed by the learned ADJ: i. ―Whether the Will dated 29.11.85 propounded by the petitioner in the present case is the last and genuine Will of late Shri Dina Nath Arora and if so, was it validly executed by him in sound disposing mind? ii. Relief‖
24. Since the issue involved in Probate case No.124/2006 and Civil Suit No. 158/06/90 are identical, learned Trial Court vide order dated 12.07.2005 consolidated both the proceedings for the purpose of evidence. Hence, evidence was recorded in Civil Suit No. 158/06/90 and both the matters were taken up together.
25. In support of her case, the Appellant Smt. Promila Kapoor examined herself before the Trial Court as PW-1 and she was duly crossexamined. The next witness was Shri Jagdish Sethi whose affidavit in evidence was exhibited as Ex.PW2/A. He was also duly crossexamined. The third witness on behalf of them was Major General (Retd.) Sh. P.D. Kapoor whose affidavit in evidence was Ex.PW3/A. He was also discharged after being formally cross-examined. The next witness on their behalf was Shri Inder Lal Kapoor, brother in law of the Appellant, whose affidavit in evidence was exhibit as Ex.PW4/A. No other witnesses were examined on behalf of the Appellant. The Appellants also relied upon the various letters written by the testator to his family members (Annexure „C‟ to „I‟) to establish the cordial relationship between the testator and his children and grandchildren.
26. On behalf of the Defendants, Shri Sudershan Lal, attesting witness to the Will was examined as RW-1 who was cross-examined and discharged. They also examined Shri Bal Kishan who was also an attesting witness, as RW-2. Respondent No.1 Sh. Inder Mohan Nagpal had examined himself as RW-3 whose affidavit in evidence was Ex.RW3A. He was extensively cross-examined before being discharged. Dr. Vijay Suri was also examined as RW-4. He was a medical Practitioner and was summoned to prove the originals of certificates dated 29.11.1985 (Ex.RW3/l) and dated 03.01.1987 (Ex.RW3/21). Another witness was summoned from A & C department, SDMC, R.K Puram (RW-5, Shri Ishwar Chand Sharma), with respect to mutation of the suit property. The last witness of the Respondents was RW-6, Sh S.P. Mehra who was also summoned in the capacity of Ex-President of EPRR Co-operative House Building Society and was summoned to prove the records of the society. No further witnesses were examined by the parties.
27. Upon perusing the records along with the evidence adduced, the learned Trial Court vide impugned judgment dated 28.11.2015 decided all of the four issues in favour of the Respondent No.1 and against the Appellants, thereby granting relief to the Respondent No.1. Consequently, Respondent No.1 was held entitled to grant of Letters of Administration with Will annexed in respect of the properties described in the Will Ex. PW-1/DX-4 and more particularly described in para 6 (i) & (ii) of the petition.
SUBMISSIONS ON BEHALF OF THE APPELLANT
28. Mr. Vaibhav Gaggar, the learned counsel on behalf of the Appellant submitted that the impugned judgment was totally perverse and was based on an erroneous appreciation of facts and law. The learned counsel further went on to submit that the case at hand was a classic case of a party trying to usurp the property of a deceased person away from the Class I heirs of the deceased by concocting a false story and placing on record fabricated documents.
29. It was further submitted that the testator had good relationship with his children and was in regular touch with them and even though the testator was living away from his family, the family ties were wellmaintained.
30. Placing reliance on the celebrated case of H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors. reported as AIR 1959 SC 443, the learned counsel argued that the impugned judgment was in the teeth of the abovementioned case as the learned Additional District Judge failed to appreciate the settled law that the propounder of the Will was legally obligated to prove the Will and the burden never shifted.
31. It was further pointed out by the learned counsel for the Appellant that the learned Additional District Judge erroneously decided the issue of genuineness of the alleged Will. The learned counsel further went on to highlight the suspicious circumstances which raised reasonable doubts on the genuineness of the Will. The following suspicious circumstances were enumerated by him: i. The natural heirs of the testator were excluded; ii. The propounder of the Will was the named Legatee and he had total access and control over the accounts and affairs of the testator; iii. The registration of the Will(s) itself was suspect considering the gross delay in registering the Will(s) since the two Wills were allegedly created on the same date with different signatures but were registered on two different dates; iv. The Will had been ante-dated considering the contents of the second Will which mentioned certain facts about the registration of the first Will which had not happened by the said date; v. The person who drew up the Will(s) himself was never examined; vi. The witnesses attesting to the execution of the Will were all interested parties; vii. No reason was mentioned for signing the first Will in the new style of signature which has not been used by the testator in any other document whatsoever;
32. The learned counsel further submitted that a number of events, including the cancellation of names in the EPRRR form, execution of two Wills, writing a letter to the tenant and procuring medical fitness certificate by the doctor, happened on the same crucial date, i.e. 29.11.1985. The learned counsel submitted that it was humanely impossible for an eighty-four year old man to travel to all these different places and get all these things done on the same date.
33. It was further submitted by the learned counsel for the Appellant that the evidence on record suffered from serious infirmities as revealed in the cross-examination of the witnesses.
34. The final submission made by the Appellant concerned the fact of the probate of the Will being hopelessly time-barred as the petition for carrying out the Probate of the Will was instituted by the Respondent in 2006, while the suit for possession was filedby the Appellant much earlier in time, i.e. in 1990.
35. In the light of the abovementioned submissions, the learned counsel prayed that the impugned order be set aside and a decree of permanent injunction be granted restraining the Respondent No. 1 from creating any third party right in any manner with the suit property.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
36. Mr. V.D. Pahuja, learned counsel on behalf of the Respondent No.1 submitted that the objections of the Appellant were barred under Section 11 of The Code of Civil Procedure, 1908 as the Appellants had not challenged the validity of the registered Wills during the trial of their petition under Section 278 of The Indian Succession Act,
1925.
37. The learned counsel further cited Section 2 (12) of the Indian Stamp Act, 1899 to define the term “execution” as meaning “signature” and submitted that the onus to prove that the Will was not genuine would shift on the Appellant once the execution of the Will had been proved. He submitted that the execution of the Will had not been disputed in view of the fact that the Appellants had filed a suit to declare the Will as invalid merely on the grounds of unsoundness of mind and suspicious circumstances and had not in fact challenged the execution of the Will. It was further submitted by him that the Appellant had not disputed the signatures of the testator on the registered Will either during her evidence or during the cross-examination of the witnesses of the Respondent.
38. Placing reliance on Daulat Ram v. Sodha reported as AIR 2005 SC 233, the learned counsel submitted that the burden to prove that the Will was forged or under coercion was on the person who alleged it. He submitted that the Appellant had failed to discharge this burden.
39. The learned counsel further cited the case of Indu Bala v. Mahendra Chandra Bose reported as AIR 1982 SC 133 to clarify the meaning of the term “suspicious circumstances” as something which is not normal or not normally expected in a normal situation or of a normal person. He refuted the existence of suspicious circumstances by submitting that the Appellant has failed to point out any suspicious circumstances to invalidate the Wills. He further submitted that the legatee in both the Wills was the same and he himself gave a justification in the second Will as to the reason for executing two Wills. He went on to submit that executing two Wills on the same date bequeathing properties to the same person/ legatee and to get them registered on two different dates did not constitute suspicious circumstances. He buttressed his argument further by placing reliance on Sushila Devi v. Pt. Krishan Kumar reported as AIR 1971 SC 2236 to submit that the non-bequest of property to the children of testator would not make the Will invalid.
40. To dismantle the contention of unsoundness of mind of the testator, the learned counsel submitted that the Appellants failed to give any suggestion as to the same to the Respondent‟s witnesses during crossexamination. On the other hand, the contents of the Will went on to prove that the testator was of sound mind when he executed the said Wills. He further placed reliance on the doctor‟s certificate dated 29.11.1985 (Ex. RW 3/1) to submit that the said certificate confirmed the sound state of mind of the testator. He buttressed his argument by relying on Section 59 of The Indian Succession Act, 1925 to submit that a Will executed even by a feeble-minded or disabled person is valid.
41. The learned counsel further relied on Sections 15, 16 and 17 of the Indian Contract Act, 1872 to submit that the Appellant did not place any material on record or plead any relevant facts to constitute coercion, undue influence or fraud on part of the Respondent. He submitted that the same was mandatory to be done under Rule 4 of Order VI of The Code of Civil Procedure, 1908.
42. The learned counsel further submitted that the Appellant had herself admitted during her cross-examination that her father had got their names cancelled as nominees in the EPRRR Form and got the name of the legatee substituted in their place. He further submitted that the Appellant did not object to the payment of rent by the tenant to the legatee or file any case to restrain him from handing over the possession of the property to the Respondent.
43. In the light of the aforementioned submissions, the learned counsel for the Respondent argued that the impugned judgment was sound and well-reasoned in all respects and prayed that the present Appeals be dismissed with costs.
LEGAL ANALYSIS BASED ON THE FACTS OF THE CASE
44. This Court heard the arguments advanced by the learned Counsel for the parties and also examined the evidence placed on record and the judgments relied upon by the parties.
45. The issue which arises for consideration in this case is - Whether the Will dated 29.11.1985 is the last and genuine Will of the testator?
46. In order to decide this issue, it is essential to examine the law relating to Wills. It is important to first expound the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act.
(i) Section 63 of the Indian Succession Act reads as follows: ―63. Execution of unprivileged wills. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules–– (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.‖
47. Hence, as per the mandate of clause (c) of Section 63, a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will.
(ii) Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, read as under: ―68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.‖
48. Hence, as per section 68 of the Evidence Act, at least one of the attesting witnesses needs to be examined to prove the execution of a Will.
49. The legal position in relation to proof of Wills has been discussed at length in the celebrated judgment of the Hon‟ble Supreme Court in the case of H. Venkatachala Iyengar (Supra). The 3-judge bench has made the following observations on this point: ―18...The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under 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 thefinding 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'smind 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 proofof the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that alllegitimate suspicions should be completely removed before the document is accepted as the last willof the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. …It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or inactions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of theevidence. It may, however, be stated generally that a propounder of the will has to prove the due andvalid 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. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. …‖ (emphasis supplied)
50. The position of law on this point has further been succinctly indicated by a Constitution Bench of the Hon‟ble Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee reported as AIR 1964 SC 529, wherein the Court made the following observations: