Vikram Chopra v. State & Ors.

15. On 25.07.1994, Rs.70,00,000/- were transferred from the account of the firm to ITC Classic Finance Ltd. On the same day, a Property Development Agreement was executed concerning a property of the Beneficiary situated in Allahabad between the Testator and the Beneficiary, wherein Rs.79,00,000/- was reflected as a security deposit.

16. On 26.07.1994, the Testator executed a General Power of Attorney [hereinafter referred to as ‗GPA‘] in favour of the Beneficiary and the Appellant and a Will bequeathing certain movable and immovable properties in favour of the Beneficiary. Both the documents were duly attested by two witnesses, one Sh. Padmanabhan

17. On 28.07.1994, a CT scan of the head of the Testator was carried out, wherein Dr. J. S. Khurana,while comparing to previous scan dated 25.04.1994, observed that ―ventricular system is dilated suggesting development of communicating hydrocephalus while left cerebral hemisphere, mid brain, pons and the cerebellum are normal‖.

18. On 02.08.1994, the Testator was examined at Moolchand Hospital and was prescribed Eposolin tablets for three weeks as a prophylactic measure against possible post-traumatic fits. Subsequently on 28.08.1994, the Testator was examined by Dr. N. P.

19. On 09.09.1994, the Testator‘s father, Sh. O. P. Malhotra, instituted a civil suit against the Testator seeking an injunction to restrain dispossession from the property of the Testator located in golf Apartments (supra), asserting that he was a tenant in possession thereof.

20. On 30.09.1994, the Testator‘s mother, Smt. Kanta Malhotra, also filed a suit for Specific Performance claiming Agreement to Sell dated 02.04.1994 was executed by the Testator in her favour concerning the suit property. In this suit,the Testator, his father and the Beneficiary were arrayed as Defendants.

21. On 11.10.1994, the Testator executed another agreement pursuant to the earlier Property Development Agreement dated 25.07.1994.

22. On 17.11.1994, the Testator filed his Written Statement in the suit instituted by his father, categorically denying the alleged tenancy and asserting that the Agreement to Sell and Rent Deed relied upon by his father were forged. In addition to this, on 19.11.1994, the Testator filed his Written Statement in the suit filed by his mother affirming the genuineness of the Agreement to Sell dated 01.05.1994 executed by him in favour of the Beneficiary and expressly refuting execution of any Agreement to Sell in favour of his mother with respect to the suit property.

23. On 01.12.1994, the Testator shifted to a guest house arranged by the Beneficiary, after his father published a notice in the newspaper disowning him and declaring that he had no further connection with his son.

24. On the intervening night of 19-20.12.1994, the Testator unfortunately passed away at the guest house. His post-mortem was conducted on 20.12.1994 night itself. The father of the Testator registered a First Information Report (‗FIR‘) bearing No.127/1995 at Police Station, Kotla Mubarakpur, New Delhi against the Beneficiary and her family under Sections 302, 120B and 34 Indian Penal Code, 1860 alleging her to be responsible for the death of the Testator. All accused were subsequently discharged.

25. As already noticed, the learned Single Judge recorded a finding that the Will was executed and registered on 27.07.1994 and stood duly proved by examining one of the attesting witnesses Sh. Padmanabhan M. Nevertheless, the learned Single Judge declined to grant probate holding that the Will was surrounded by sixteen suspicious circumstances.

CONTENTIONS ON BEHALF OF THE APPELLANT

26. Learned counsel for the Appellant contends that the learned Single Judge has erred in declining the probate despite the Will being duly executed, attested, and proved in accordance with law. It is contended by the learned counsel that the Testator was in a sound and disposing state of mind at the time of execution and registration on 27.07.1994, satisfies all statutory requirements under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Further, it is contended that there are no allegations or proof of undue influence, coercion, or fraud, and the Appellant has discharged the burden of proof required to establish the Will.

27. Furthermore, it is urged that the relationship between the Testator and his parents had become strained on account of the criminal prosecution arising out of the dowry death of his wife, in which the parents and the sister were named as accused. The disinheritance of the natural heirs is, therefore, neither unnatural nor improbable. The Beneficiary is a person in whom the Testator had reposed confidence and reliance, as she took care of his meals, medical needs and personal requirements during his illness and thus, such reliance and trust cannot be construed as coercion.

28. Learned counsel for the Appellant also contends that the medical record does not establish incapacity. The CT scan dated 28.07.1994 was a routine investigation, while the subsequent scan dated 02.08.1994 revealed no neurological deficit. The postmortem report confirms that the death was natural. It is further contended that a probate petition of an alleged prior Will dated 15.11.1994 in favour of the Testator‘s maternal uncle, Mr. Subhash, had already been dismissed. The Property Development Agreement between the Testator and the Beneficiary, records payment of Rs.79,00,000/- out of Rs.[1] crore, thereby establishing legitimate financial dealings between them. The findings of the learned Single Judge are, therefore, based on conjectures and surmises and are contrary to the evidence on record.

CONTENTIONS ON BEHALF OF THE RESPONDENTS

29. Per contra, learned counsel for the Respondents supports the findings of the learned Single Judge and submits that the Beneficiary was a complete stranger to the Testator‘s family, whose acquaintance dates back only a few months prior to execution of the Will. It is contended by the learned counsel that the Will and several contemporaneous documents were executed in close succession, creating inherent suspicion regarding their genuineness. The Testator, being merely 36 years of age, had no occasion to dispose of his entire estate in favour of a stranger while completely excluding his natural heirs.

30. It is further contended by the learned counsel for the Respondents that the mental and physical condition of the Testator stood compromised due to head injury, hydrocephalus, and alcoholism, as reflected in the CT scan and medical records. The active role of the Beneficiary in arranging, preparing and registering the Will and related agreements is indicative of undue influence and manipulation. The existence of two conflicting Agreements to Sell— one in favour of the mother for Rs. 7.[5] lakhs and another in favour of the Beneficiary for Rs. 4.75 lakhs—further reflects inconsistency and casts serious doubt on the Testator‘s intent. The learned counsel for the Respondents contended that the Will is not the product of the free volition of the Testator but a result of exploitation of his vulnerable condition by the Beneficiary.

FINDINGS & ANALYSIS

31. Heard learned counsel representing the parties at length and with their able assistance perused the paper book, along with the requisition record and their written submissions.

32. Before proceeding to analyse the alleged suspicious circumstances, it is pertinent to note certain salient facts of the case: i. The record of the case reveals that the Testator fell from a rickshaw on 21.04.1994 in Banaras, Uttar Pradesh and at that time he was alone. There is no evidence to prove that he was ever examined by a Doctor in Banaras or anywhere else before 25.04.1994 when he was admitted in the Medical Center with symptoms of headache in temporal region of the head. ii. Perusal of further cross-examination of the mother of the Testator, Smt. Kanta Malhotra, dated 27.07.2005 confirms the fact that at that time,she along with her husband were at Dehradun, Uttarakhand. iii. It is the case of the mother of the Testator, Smt. Kanta Malhotra, that they returned to Delhi on the night of 25.04.1994 and her daughter received them from the railway station. It is at this moment when she got to know about the accident of her son and the fact that he was admitted at the Medical Center. iv. The facts of the case reveal that she went to the hospital alone, to visit her son. Neither any evidence is led to prove that either Ms. Reet A. Anand or Sh. O. P. Malhotra went to the Medical Center nor they have been examined or have stepped into the witness box, in this context. v. The sister of the Testator, Ms. Reet A. Anand,who lives in the same city as her brother, was informed about her brother‘s accident, but there is no evidence that she ever visited him to comfort or check upon her brother. Furthermore, crossexamination of Smt. Kanta Malhotra dated 25.07.2005 reveals that the Testator called his sister, informing the fact of his admission at the Medical Center, but she had gone to pick up the child and was not available. However, there is no evidence to prove that she visited her brother who was hospitalized. vi. A perusal of discharge summary of the Medical Center does not show any serious head injury because it is recorded that after 6 days of hospitalization his condition has improved. vii. It is nowhere recorded in the discharge summary that the Testator is alcoholic. viii. The post-mortem report which though filed but not exhibited on the record does not reflect that the Testator had consumed liquor. ix. Additionally, this Court can place reliance on the judicial record of Criminal Writ No. 117/96 captioned O. P. Malhotra vs. State and Ors., wherein a report of March 1995 (within 03 months after the death of the Testator) conducted by the Medical Board, All India Institute of Medical Sciences, New Delhi [hereinafter referred to as ―AIIMS‖] submitted by the Respondents, wherein it is stated that ―there is nothing suggestive of chronic Alcohol intake and its withdrawal seizures‖, which clearly rules out any signs of chronic alcoholism.

33. In order to bring clarity, tabulated information on the alleged suspicious ground as enumerated by the learned Single Judge in the Impugned Judgement in Para 112 resulting in discarding the will and the reasons given by the division bench are compiled:

34. It is pertinent to note that none of these suspicious circumstances surrounding the Will were put to Sh. Padmanabhan M., the attesting witness, nor was any foundational basis of the same laid in objections. It is equally significant to note that Smt. Kanta Malhotra has not proved these alleged circumstances. Furthermore, Sh. O. P. Malhotra and Mrs. Reet A. Anand, father and sister respectively, of the Testator fail to enter witness box.

35. At this stage, it is pertinent to recall the settled position of law governing the appreciation of a will alleged to be surrounded by suspicious circumstances. In H. Venkatachala Iyengar v. B. N. Thimmajamma[1], the Three Judge Bench of the Supreme Court held that:

AIR 1959 SC 443. propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts. xxxx xxxx xxxx xxxx

21. …If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. 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...

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. 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. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson[1] “where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth”. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.”

36. In the present case, the Will in question stands duly executed and attested in accordance with law. One of the attesting witnesses, Sh. Padmanabhan M., entered the witness box and proved its execution and no material contradiction has been elicited in his crossexamination.

37. The Appellant/Executor was not a recent acquaintance but a long-standing family friend of the Testator for over a decade. The record reflects that after the Testator‘s relations with his parents deteriorated and his father, Late Sh. O.P. Malhotra, disinherited him on 01.12.1994 through a public notice, it was the Chopra family who extended moral and logistical support to him. This association and trust find reflection in several contemporaneous transactions, including execution of the MoU dated 04.03.1994 in favour of the Beneficiary, and subsequent execution of Agreement to Sell dated 01.05.1994 in lines with the prior MoU, cancellation of Power of Attorney in favour of his father, change of residence address, direction to deposit cheques at the Appellant‘s house address, and retention of personal papers there, demonstrates a deliberate, voluntary decision to benefit the Appellant‘s family. Thus, the participation was a natural outcome of this long-standing trust and not a product of undue influence.

38. While discussing the positions laid down in H. Venkatachala Iyengar case (supra), the Supreme Court in the case of Jaswant Kaur v. Amrit Kaur[2] observed as under:

itsexecution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.

3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an elementof solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of theessential facts which go into the making of the will.

4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading partin the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the willbears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their dueshare in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstancesattendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether aninstrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed bythe testator.

6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the willmay raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.‖

39. Applied to the present case, these principles reinforce that mere benefit to the Beneficiary, and disregarding natural heirs, cannot by itself invalidate the Will. The Will itself records the affection and regard of the Testator for the Beneficiary and her family. Notably, the MoU predates the accident on 21.04.1994, directly undermining any contention that the Testator was under undue influence or lacked soundness of mind at the time of these testamentary acts. The continuity of dealings from March 1994 onwards, much before the Testator‘s accident, further dispels any inference that the Will or related documents were executed in suspicious circumstances.The Testator‘s deliberate contemporaneous actions, in favour of the Beneficiary, demonstrate consistency of intent, voluntary execution, and sound judgment.

40. Likewise, in Rani Purnima Debi v. Kumar Khagendra Narayan Deb[3], the four-judge bench of the Supreme Court referred to the aforementioned decision in H. Venkatachala Iyengar (supra) and further explained the principles which govern the proving of a Will as follows: “5....…even when where there are suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations.” 1962 3 SCR 195 Similar approach was followedin Sridevi v. Jayaraja Shetty[4], where the Supreme Court held that:

41. In the present case, the Will in question is a registered document, executed in accordance with statutory requirements and duly attested by two witnesses. The circumstances referred to in the Impugned Judgment do not, upon close scrutiny, constitute such suspicious circumstances as to discredit the genuineness of the testament. On the contrary, the evidence on record, coupled with the testator‘s prior independent acts and consistent dealings with the beneficiaries, supports the inference that the execution was the result of a conscious and voluntary decision. The allegations of undue influence or coercion remain unsubstantiated and speculative.

42. Most recently the entire series of case law was considered by the Supreme Court in Kavita Kanwar v. Pamela Mehta[5] reiterating the parameters laid down bya three-judge bench of the Supreme Court in Shivakumar & Ors. v. Sharanabasppa & Ors.6, wherein the Supreme Court after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a Will and held as under: “24.8…We need not multiply the references to all and other decisions cited at the Bar, which essentially proceed on the aforesaid principles while applying the same in the given set of facts and circumstances. Suffice would be to point out that in a recent decision in Civil Appeal No. 6076 of 2009: Shivakumar & Ors. v. Sharanabasppa & Ors., decided on 24.04.2020, this Court, after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a Will as follows:

1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.

2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.

3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on

AIR 2020 SC 3102 proof of the essential facts which go into the making of a Will.

4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.

5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.

6. A circumstance is “suspicious” when it is not normal or is „not normally expected in a normal situation or is not expected of a normal person‟. As put by this Court, the suspicious features must be „real, germane and valid‟ and not merely the „fantasy of the doubting mind.‟

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.”

43. Having said that, the material question is: Which circumstance qualifies to be „suspicious‟? Taking lead from the guiding principles as laid down by Supreme Court in Shivakumar's case (supra) and reiterated in Kavita Kanwar's case (supra), it can be held that circumstance is 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected from a normal person. The law presumes testator to be a man of ordinary prudence. He is believed to have acted as a normal person.

44. In Motibai Harmusjee v. Jemsetjee Hormusjee[7], it was held: "A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing, the Court will not interfere with the exercise of his volition." Relying upon the afore-stated observations made by Privy Council in Motibai Harmusjee's case (supra), Supreme Court in Surendra Pal v. Dr. (Mrs.) Saraswati Arora[8] held that: “It is not for us to fathom the motivations of a man. His actions and reactions are unpredictable as they depend upon so many circumstances. There is. however, always some dominant and impelling circumstance which motivates a man's action though in AIR 1924 PC 28 some cases even a trivial and trifling cause impels him to act in a particular way which a majority of others may not do. At times psychological factors and the frame of mind in which he is, may determine his action."

45. Same view was followed by this Court in the case of Smt. Rajeshwari Rani Pathak v. Smt. Nirja Guleri and others[9], wherein while dealing with the issue of suspicious circumstance and the conscience of the Court, this Court observed as under: “……In the final analysis, it is the conscience of the Court that has to be satisfied and as such, the nature and quality of proof must be commensurate with the requirement to satisfy that conscience. The important question in each case is: What is the suspicion which a reasonable man will entertain in the circumstances of a case.”

46. A careful reading of the above circumstances, in the light of the guiding principles in aforementioned precedents, establishes following essential considerations for rejecting claims of suspicious circumstances: i. Suspicious circumstances must be clearly pleaded and proved by evidence, not assumed or speculative. ii. Mere benefit to a non-relative or disinheritance of natural heirs is not sufficient ground to discard a will. iii. Evidence of sound mental capacity and voluntary execution shifts the burden to objectors to prove undue influence or incapacity. iv. Registration of the Will and corroboration by attesting witnesses strengthens the presumption of genuineness. 1977 AIR (P&H) 123 v. Events before, during, and after execution, if behavior is consistent with testamentary intent, the same would affirm genuineness rather than create suspicion.

47. Having considered the present matter in its totality while keeping the principles aforesaid in view, we have not an iota of doubt that the learned Single Judge erred in observing existence of sixteen suspicious circumstances. Here, the objectors have failed to produce any definite evidence of undue influence, coercion, or incapacity. The deliberate and voluntary acts of the Testator before and after the accident, dispel any notion of impropriety. In the present case, the execution of the Will having been proved and there being no circumstance to show that testator acted in a manner which a normal prudent man would not, this Court finds that the Courts below erred in dislodging the Will spelling out circumstances which cannot be held to be abnormal or suspicious.

48. In conclusion, this Court observes that the Will dated 26.07.1994, registered on 27.07.1994, stands proved through the testimony of one attesting witness, Sh. Padmanabhan M. and corroborated by the Sub-Registrar‘s office. This Court finds that the learned Single Judge failed to appreciate that once due execution is proved in the manner prescribed under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 the burden shifts to the objectors to establish any undue influence or lack of testamentary capacity, which the objectors have failed to discharge.

49. For the foregoing reasons, this Court finds that the learned Single Judge erred in refusing probate of the duly executed and registered Will. In light of the above authorities and evidence, this Court holds that the Appellant/Executor has duly discharged the burden of proving due execution and attestation, while the Respondents/Objectors have failed to establish any real suspicious circumstance. The Will, read conjointly with the contemporaneous documents, clearly represents the Testator‘s voluntary and conscious decision. This Court finds that the rejection of probate by the learned Single Judge thus stands contrary to the settled guidelines of the Supreme Court.

50. With these observations, the present Appeal is allowed, while setting aside the Impugned Judgment dated 11.09.2009 passed by the learned Single Judge and thus the registered Will dated 27.07.1994 is accordingly held to be genuine, validly executed, and deserving of a probate.

51. The present Appeal stands disposed of. ANIL KSHETARPAL, J. HARISH VAIDYANATHAN SHANKAR, J. NOVEMBER 21, 2025 s.godara/dev