Sanjay Kalra v. State

15. Most importantly, she has stated that after inspecting the Original of the subject Will, it appears that the subject Will was typed on a fresh whitepaper, which clearly does not appear to be of the year 2004, that is, ten years old, and the contents of the subject Will have been typed out much after the year 2004 on blank papers containing the signatures of the Testator, that may have been obtained on different occasions. As I find this objection to be important for the determination of the present case, I may quote from her objections as under:- “ a. That the Objector had sought the permission of this Hon‟ble Court to examine the purported original Will, which had been placed in a sealed cover, which was allowed by this Hon‟ble Court vide order dated 26.06.2014. On such examination, it was revealed that the purported Will is typed on a fresh whitepaper which clearly does not appear to be of the year 2004, i.e. ten years old and as such, on the fact of it, appears to be forged and fabricated. It is further submitted that it appears that the contents of the said purported Will have been typed out after getting the signatures of Late Mr.D.K. Jain on blank papers much after the year 2004, apparently on different occasions. The objector herein reserves her right to get the Purported Will examined forensically or other expert procedures to test the genuineness, authenticity and veracity of the Purported Will. The Objector herein also seeks the liberty of this Hon‟ble Court to produce the report of the handwriting and signature expert as and when the same is available to the Objector herein.”

16. She has stated that the two purported executors appointed in the subject Will can act only in conjunction with each other and not in the alternative or alone, and since Mr.Primal Oswal, the second executor, has neither given a no objection to the petitioner nor has he been made a party to the present petition, therefore, the present petition ought to be rejected.

17. She states that Ms.Usha Jain got her to sign a no objection to the subject Will through a Memorandum of Understanding dated 11.06.2014 (Mark ZB), without her free will, consent, under undue influence and coercion, and under the threat that her salary and other perquisites would be withdrawn, in case, she does not sign the same, within just two months of her father‟s passing. She states that the said Agreement/MOU, therefore, cannot be relied upon by the Legal Representative No. 1 as an acknowledgment of the Objector to the due execution of the subject Will by the Testator.

ISSUES

18. Based on the pleadings of the parties, this Court, by its Order dated 06.11.2015, framed the following issues:- “1. Whether the Will dated 11.12.2004 is the genuine and validly executed Will of Late Shri D.K. Jain? OPP

2. Relief, if any.”

19. In support of the petition, the petitioner examined himself as PW-1. He filed his evidence by way of an affidavit dated 04.01.2016 (Ex.PW1/1), contending therein that he can identify the signatures of the Testator on the subject Will, as he had seen him writing and signing on various documents while he was working with the Testator. He further stated that the Testator had obtained prior permission from him, before appointing him as an Executor of the subject Will. He stated that Mr. Primal Oswal was also appointed as the other Executor of the subject Will by the Testator. He stated that Mr.Primal Oswal has sent him an affidavit with a letter dated 30.12.2015 (Ex.PW1/C), stating that he could not join in the filing of the present Probate Petition as he was preoccupied with his personal work commitments.

20. He further stated that the Original of the subject Will was left behind by the Testator with his wife, Smt. Usha Jain, who took out the subject Will from the office locker and handed it over to him, to enable him to conduct his duties as an Executor. He stated that the Will was handed over to him by Ms. Usha Jain in a brown envelope, on which the words “personal Will”, along with the date 11.12.2004, was written in the handwriting of the Testator, who had initialled it. The said envelope was produced by him as (Ex.PW1/D). He stated that he can identify the handwriting and initials of the Testator as he had seen him signing and writing on various occasions.

21. The petitioner filed additional evidence by way of an affidavit dated 03.03.2016 (Ex.PW1/2), stating that he had been looking after the financial affairs of the Testator, as well as all his children, for a number of years in his personal capacity as a Chartered Accountant. He further stated that the children of the Testator had given him Power of Attorney(s) to represent them before the tax authorities. He filed various documents in support of his statement that he was having professional involvement with the Testator and his four children, including the sole objector, Ms. Priya Jain.

22. The petitioner (PW-1), in his cross-examination, admitted that he had only a professional relationship with the Testator and did not enjoy any social relationship with him. He stated that he did not remember the exact date on which the Testator sought his consent for making him an Executor. He stated that his consent was taken over the telephone. He stated that as he had seen the Testator sign a number of documents in his presence, he could recognise his signatures, and reiterated that the subject Will contained the signatures of the Testator.

23. He admitted that it was Ms.Usha Jain, who told him about the subject Will, post the death of the Testator.

24. He further admitted that though he has filed the present petition at his own instance, he did so after discussing the same with Ms.Usha Jain, and the bills for the expenses of the present petition are being paid by Ms.Usha Jain.

25. He admitted that Mr.Primal Oswal refused to give his consent and no objection to the filing of the Probate Petition. He admitted that later, the affidavit of Mr.Primal Oswal, dated 30.12.2015 (Ex.PW1/C), was given to him by Ms.Usha Jain. He stated that the said affidavit was not signed in his presence and he does not know the signatures of Mr.Primal Oswal and nor is he aware on what terms and conditions Ms.Usha Jain procured the said affidavit. He admited that even the letter dated 30.12.2015, accompanying the said affidavit, was not signed by Mr.Primal Oswal in his presence and the same had been handed over to him by Ms.Usha Jain.

26. He was also cross-examined on the retainership fee received by him from the companies for the years 2013-14 and 2014-15, which he answered by stating that he did not remember the same. He was called upon to produce his Income Tax Returns, which also he refused to produce, stating that it is his personal and confidential information, which he would not like to disclose.

27. He admitted that the Testator had never provided him with a copy of the subject Will and had also not informed him that in whose custody the same was kept. PW-2: Mr. Mahesh Gupta

28. The petitioner also examined the attesting witness to the subject Will, Mr. Mahesh Gupta, as PW-2. In his evidence by way of an affidavit dated 04.01.2016 (Ex.PW2/Y), Sh. Mahesh Gupta stated that he is one of the attesting witnesses to the subject Will. He stated that he knew the Testator since 1990 as he was employed with a Chartered Accountant firm, namely, RS Bajaj & Co., which was providing services to the Luxor Group of Companies from 1990 to 1992, during which period he had closely worked with the Testator and had many personal interactions with the Testator. He further stated that as the Testator was impressed with his work, ethics, and behaviour, he asked him to join the Luxor Group of Companies. He stated that he joined the Luxor Group in 1996 as Senior Manager (Finance and Accounts) and since then he worked closely with the Testator, handling his personal accounts, taxation, finance, investments, and corporate affairs of the Testator, and his family members.

29. He further stated that in the evening of 10.12.2004, the Testator had asked him to be present in the office on 11.12.2004, which was a holiday, being the second Saturday of the month, to discuss an important matter. He stated that on 11.12.2004, when he reached the office, after some time, Sh. V.K. Jain, the other attesting witness of the subject Will, also came to the office. The Testator called him in his cabin situated on the first floor of the Luxor Office at 229, Okhla Industrial Estate Phase-III, New Delhi-110020. He and Sh. V.K. Jain entered the cabin of the Testator together. He stated that the Testator told them that he had got a Will prepared in respect of his estate and requested them to bear witness to the execution of the same. He stated that the Testator placed before them a pre-typed document and described the same as his Will. The Testator thereafter signed on each and every page of the subject Will, which ran into eight pages, and signed and wrote the date 11.12.2004, along with his signatures, on the last page of the Will in their presence. He stated that after the Testator had signed on each and every page of the subject Will, he signed the same as attesting witness no.1 on the last page of the subject Will, in the presence of the Testator and Sh. V.K. Jain. He stated that Sh. V.K. Jain signed the subject Will as an attesting witness in his presence and in the presence of the Testator. He stated that he can identify the signatures of the Testator and Sh. V.K. Jain as both of them signed the subject Will in his presence.

30. In his cross-examination, PW-2 stated that he joined the Luxor Group of Companies in May 1996 as a Senior Manager (Finance and Accounts). He stated that he did not remember the amount of his salary for 1996, or for 2004 or in 2014. He denied producing his Income Tax records, claiming them to be confidential and personal.

31. He admitted that he had been reporting to Ms.Usha Jain and Ms.Pooja Jain after the death of the Testator.

32. He admitted that he had only a professional relationship with the Testator during his lifetime, and had no social relationship with him.

33. He also admitted that after the death of the Testator, he has been nominated as a Director in place of the Testator in the Eden Park Hotels Private Limited. He, however, added that the same is without any monetary gain/benefit. He denied the suggestion that the Testator was receiving emoluments and perks from Eden Park Hotels Private Limited, which were later transferred and were being paid to Mr.Rajat Sharma, another employee of the Luxor Group of Companies, who had been appointed as a Director in the said Company. He further stated that Ms.Priya Jain, though was offered salary and perks by the said Company, the same were denied by the Jain Group as there was a dispute between the Jain Group and the Gupta Group, which owned 50% shares each in the said Company.

34. He stated that on 11.12.2004, he was called to the office of the Testator as there were certain finance, accounts, and taxation matters to be discussed. He stated that he used to maintain the personal accounts of the members of the Jain Family, including Ms.Payal Kapoor and her husband. He stated that Sh. V.K. Jain was also present at the time of the meeting. He stated that he had seen the subject Will for the first time when the Testator showed the same to him on the said date. He denied the suggestion that the subject Will was not signed by the Testator on 11.12.2004, or any other date, or had been prepared only after his death. He reiterated that all pages of the subject Will were signed by the Testator in his presence. He also denied the suggestion that the signatures of the Testator were already existing on blank papers and the text of the subject Will was typed later. He denied the suggestion that in lieu of him agreeing to be a witness to the subject Will, after the death of the Testator, he was given extraordinary promotion or out of turn promotion and was also given a premier position in the Eden Park Hotels Private Limited. He though admitted that from 01.06.2017 he had been appointed as the Group Chief Financial Officer. He denied the suggestion that he was assigned the work of looking after the Real Estate Portfolio of the Luxor Group of Companies only after 18.03.2014, and/or was entrusted with the banking and treasury of the entire Luxor Group of Companies only after the said date. He stated that he was looking after both these issues even prior to 18.03.2014.

35. A suggestion was given to him that even the other witness to the Will, Sh. V.K. Jain, was earlier a Director of only four Companies in the Luxor Group of Companies, while later, had been made a Director in fifteen Companies, to which, he replied that Sh. V.K. Jain was a Director of many companies of the group even before 18.03.2014. The names of some of the Companies were also suggested to him, stating that Sh. V.K. Jain became a Director of these Companies after the death of the Testator, however, the PW-2 stated that these were mainly dormant companies and a few of them have already been struck off from the Register of Companies.

36. He stated that the name of the Testator was spelt differently, though, in the statutory records, the spelling was „Davinder Kumar Jain‟.

37. He admitted that in Form 20B, filed for Luxor International Private Limited for the year 2012, there was a mistake wherein, Ms.Pooja Jain was shown as 50% shareholder instead of the Testator. He stated that this mistake was committed by the office of Rajiv Khosla and Associates, who was the Company Secretary of the Group back then, and the same was later rectified.

38. He admitted that he did not read the subject Will, though he was broadly briefed about its contents by the Testator.

EVIDENCE BY THE OBJECTOR RW-2:Ms.Priya Jain

39. Ms.Priya Jain examined herself as RW-2. In her evidence by way of an affidavit (Ex.RW-2/A), she has stated that the Testator never spelt his name as „Devendra Kumar Jain‟ and always used to spell it as „Davinder Kumar Jain‟. Apart from denying the subject Will and stating that it is surrounded by suspicious circumstances, she has stated that vide Letter/Agreement dated 11.06.2014 (Mark ZB) read with Agreement dated 15.03.2016 (Mark Y), Smt.Usha Jain had agreed to give her Rs.2,30,000/- per month for her expenses, as were given to her by the Testator, however, Smt.Usha Jain did not pay the same to her despite several reminders. She admitted that these Agreements bear her signatures as well as those of Smt.Usha Jain. I quote from her statement as under:- “My mother, Mrs.Usha Jain vide her letter/agreement dated 11th June, 2014 read with agreement dated 15.03.2016 had agreed to give me Rs.2,30,000/- per month for my expenses, as were been given to me by my father, but, she is not paying the same to me, in spite of several reminders. Both the agreements bear mine signatures as well as Mrs.Usha Jain. Both be exhibited.”

40. She stated that the subject Will appears to have been typed and written on new fresh white papers and on the last page of the subject Will, printing is present on the signatures, thereby, showing that it is a forged document.

41. In her extensive cross-examination, she stated that the signatures on the subject Will are not those of the Testator.

42. As far as the Agreement dated 11.06.2014 (Mark ZB) is concerned, in her cross-examination, she now states that the same was got signed from her under undue influence by her mother, who stated that she would look after her interest in the estate of the Testator. She states that Smt. Usha Jain did not let her read the contents of the documents. Similar was her answer to the Agreement dated 15.03.2016 (Mark Y). She further admitted that she had been given various properties by her parents. She, in fact, went on to deny the very documents she had relied upon in her evidence by way of affidavit.

43. It is important to note here that the learned Joint Registrar (Judicial), who was recording her cross-examination, on various occasions, made an observation that the witness was appearing to give evasive answers and was deliberately giving lengthy answers to delay the proceedings.

SUBMISSIONS OF THE LEARNED SENIOR COUNSEL APPEARING FOR THE OBJECTOR/LEGAL REPRESENTATIVE NO. 5 - MS.

PRIYA JAIN

44. Mr.Harish Malhotra, the learned senior counsel appearing for the sole Objector - Ms.Priya Jain, submits that the subject Will has not been proved by the petitioner. He submits that though the Objector had contended that the signatures of the Testator on the subject Will had been forged by some expert, no steps were taken by the petitioner or the beneficiaries to prove the signatures of the Testator on the subject Will. He submits that, in fact, the signatures on the last page of the subject Will appeared to be covered by the typed portion.

45. He submits that even otherwise, the subject Will is shrouded with suspicious circumstances. He submits that there is an unnatural bequest whereby, even the unmarried children have been ignored by the Testator and the entire estate has been bequeathed by the Testator to his wife, without giving any reasons for the same. In support of his submissions, he places reliance on H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors., AIR 1959 SC 443, Murthy and Ors. v. C. Saradambal & Ors., (2022) 3 SCC 209, and Jaswant Kaur v. Amrit Kaur & Ors., (1977) 1 SCC 369.

46. He submits that the Will is even otherwise shrouded with suspicious circumstances with even the spellings of the name of the Testator in the Will being incorrect. He submits that though the Testator was running a business empire, he is not stated to have consulted any lawyer and nor is the Will stated to have been drafted by a lawyer, which is completely unnatural and casts a suspicion on the subject Will. He submits that apart from the fact that the investments in shares of various public listed Companies have not been mentioned in the Will, as far as the Company by the name of Luxor Writing Instruments Private Limited is concerned, from the annual returns of the said Company, it would now be evident that as on 01.04.2004, the Testator was holding 14,81,250 shares. It is now also evident that 1,18,500 shares had been transferred by Mrs.Usha Jain to the Testator on 01.10.2004, thereby making his total shareholding in the said Company as 15,99,750 shares. However, still, the subject Will shows the Testator to be owning 14,81,250 shares as on the date of the subject Will. He submits that this, itself, casts a suspicion on the subject Will, as the Testator, who was a man of business, would not commit such a mistake in such an important document, as the Will. In support, he places reliance on the Judgment of Supreme Court in Anil Kak v. Sharada Raje & Ors., (2008) 7 SCC

695.

47. He submits that the Testator has not executed any Codicil to the subject Will, even after ten years of execution of the subject Will, despite there being a tremendous change/increase in personal and professional estate of the Testator in this subsequent period, which again, according to him, casts a doubt on the very execution of the subject Will.

48. He submits that when the Legal Representative No.2 - Ms.Payal Kapoor was objecting to the subject Will, she herself produced a report dated 27.03.2016 of a handwriting expert, Mr.Deepak Jain, who in his report opined that the signature of the Testator appearing on the last page of the subject Will was already there when the contents were typed/added thereon. He submits that on the other hand, the petitioner or the beneficiary of the subject Will, made no attempt to prove the signatures of the Testator on the subject Will by producing any handwriting expert. In support of his submissions, he places reliance on the Judgments of Supreme Court in Kavita Kanwar v. Pamela Mehta & Ors., AIR 2020 SC 2614, Prakash Soni v. Deepak Kumar & Anr., (2017) 9 SCC 332, B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors., (2006) 13 SCC 449, Bharpur Singh & Ors. v. Shamsher Singh, (2009) 3 SCC 687, and Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors., (2006) 13 SCC 433.

49. He submits that even the age(s) of the children have been incorrectly recorded in the subject Will and this is not expected of a man like the Testator, especially on an important document like a Will.

50. He submits that the subject Will runs into eight pages, but does not show continuity as the page numbering has not been done in the subject Will, the typing is not in synchronisation, and even the last paragraph of the Will is not numbered.

51. He submits that the appointment of the Executor and the choice of the witnesses to the subject Will also casts a suspicion on the subject Will. He submits that the Executor was a junior executive of the Group of Companies managed by the Testator, and the witness, as per his own showing, was only a Chartered Accountant. It is inconceivable that the Testator would choose them as the Executor and as a witness to the subject Will over his own family members or the Senior Managerial Executives of his Group of Companies. He submits that the petitioner admits that he did not even know of the subject Will till it was produced by Smt. Usha Jain. In fact, only Smt. Usha Jain knew about the subject Will and no other family member was informed of the same.

52. He submits that the other Executor, Mr.Primal Oswal, has not even filed the present petition and, in his absence, and in terms of Section 224 of the ISA, the present petition is not maintainable. He submits that faced with the above, Smt. Usha Jain, through the petitioner, propounded an affidavit dated 30.12.2015 (Ex.PW1/C) allegedly of Mr.Primal Oswal, stating that due to his pre-occupation, he could not join in the filing of the present petition. However, Mr.Primal Oswal was not even produced as a witness in the present case and the affidavit also remained unproved. In support, he places reliance on the Judgment of the Karnataka High Court in In the matter of last will and Testament of Eunice Annette Johnson, AIR 1970 Mys 46, and of the Madras High Court in James Noel Anthony Hobbs & Anr., 1956 SCC OnLine Mad 65.

53. He submits that the petitioner and the witnesses, being PW-1 and PW-2, who have supported the subject Will, have both been rewarded in various forms by Smt. Usha Jain, the sole beneficiary under the subject Will, by not only giving them promotions and appointments at key managerial positions in various Companies, but also by appointing the petitioner as a Director of Eden Park Hotels Private Limited, which is one of the prime assets of the family and in which the Objector was the Director until she was removed from that position. He submits that PW-1 and PW-2 were asked to produce their Income Tax Returns in order to prove that they were being given financial benefits to support the forged subject Will, however, they refused to produce the same as they were afraid that the above fact would get substantiated.

54. He submits that even though the subject Will was claimed to have been produced and given to the petitioner by the sole beneficiary under the subject Will, that is, Smt. Usha Jain, she did not appear as a witness in the present case, fearing that the forgery would get proved from her cross-examination. In support, he drew my attention to various parts of the cross-examination of PW-1 and PW-2.

55. He submits that the reliance of Smt. Usha Jain on the Letter/Agreement dated 11.06.2014 (Mark ZB) or on the Affidavitcum-No Objection dated 11.06.2014 (Mark ZC), Special Power of Attorney (Mark ZD), and/or the Relinquishment Deeds dated 12.05.2014 (Mark ZE to Mark ZL), executed by the Objector- Ms.Priya Jain, can also not be accepted, inasmuch as Ms.Priya Jain has clearly stated that the said Letter/Agreement and other documents, were got executed from her by her mother under undue influence and by telling her that unless she signs the same, she will not get any financial assistance from the estate of the family. He submits that, even otherwise, in the Agreement dated 15.03.2016 (Mark Y), it was clearly mentioned that the same is without prejudice to the rights and contentions of Ms.Priya Jain against the subject Will in the present Probate Case.

56. He submits that for the above reasons, the present petition is liable to be dismissed.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PETITIONER

57. Ms.Kajal Chandra, the learned counsel for the petitioner, drawing reference of this Court to the answer to question no.4 put to the sole Objector- Ms. Priya Jain in her cross-examination recorded on 06.10.2021, submits that the Objector has admitted that the Testator was in sound disposing mind and was not suffering from any mental ailments till his death on 18.03.2014. The referred question and answer is reproduced hereinunder:- “Q[4]. Is it correct that your late father was not suffering from any mental illness and was of sound disposing mind till his death i.e. 18.03.2014? Ans. Yes. He had no mental illness but he was suffering from other ailments.”

58. Referring to the objections filed to the present Probate Petition by Ms. Priya Jain, specifically paragraph 6(B)(b), she submits that it was the case of Ms. Priya Jain that though the signatures on the subject Will are those of her late father, that is, the Testator, they may have been obtained on different blank pages on different occasions. She submits that it was only during her cross-examination, as an afterthought, that too in a vague manner, Ms. Priya Jain sought to dispute the signatures of the Testator on the subject Will. In this regard, paragraph 6(B)(b) of the objections, and the answer to question 23 given by Ms. Priya Jain in the course of her crossexamination on 15.03.2022, are reproduced hereinunder:- “6. PRELIMINARY OBJECTIONS xxxxx

B. SUSPICIOUS

CIRCUMSTANCES xxxxx b. It is further pertinent to note that the purported Will which run into 8 pages does not show continuity with the previous pages, in as much as the last paragraph does not reflect any paragraph number in sync with the previous paragraphs. A perusal of the last page of the purported Will, and that too without any paragraph number, which peculiarly starts from “I declare that.....” clearly shows that the proceeding pages were different and as such signature may have been obtained on different pages at different occasions. xxxxx Cross-Examination Q23. Is it correct that the averments made in paragraph B(i)(b) at Page 39 of reply/objection dated 10.10.2014, you had stated that Portion ‗A‘ to „A‟ – “A perusal of the last page of the purported Will, and that too without any paragraph number, which peculiarly starts from “I declare that.....” clearly shows that the proceedings pages were different and as such signature may have been obtained on different pages at different occasions”. What do you have to say? Ans. Yes, it is mentioned. Vol. It is mentioned that the signatures on all different pages are false. These are not my father‘s signatures on all pages as I was very very close to my father had seen him signing all my life.” (Emphasis Supplied)

59. She further submits that the petitioner and the Legal Representatives Nos.[1] to 4, have been requesting for the subject Will to be sent to the Central Forensic Science Laboratory (in short, „CFSL‟), however, it is the Objector- Ms. Priya Jain, who refused to be bound by the report of the CFSL, thereby compelling the Court to observe in its Order dated 19.12.2019, that no useful purpose would be served by sending the subject Will to the CFSL for an examination and to get a report on the signatures of the Testator.

60. The learned counsel for the petitioner has also drawn my attention to the cross-examination of Mr. Mahesh Gupta (PW-2) conducted on behalf of the sole Objector- Ms. Priya Jain. She submits that the questions/suggestions put to the witness would suggest that the Objector admits that the subject Will has been signed by the Testator and bears his signatures. In this regard, the relevant portion of the cross-examination is reproduced hereinunder:- “Q.89 I put it to you that since the purported signatures of Mr. D.K. Jain were already existing on the blank papers and the text of the Will Ex.PW-2/Z was typed later that is the reason that line at point B to B-1 on page 8 of the said will Ex.PW-2/Z is above the signatures and the date at mark A-8. What do you have to say

61. The learned counsel for the petitioner submits that though the Objector also sought to raise a contention that the subject Will is suspicious as there is no reason as to why the petitioner would be appointed as an Executor thereof, Ms.Priya Jain, in her crossexamination admitted that the petitioner was looking after the financial dealings of the Testator and even she had signed various documents authorizing the petitioner to represent her interest before the Income Tax Department. She submits that as the petitioner was close to the Testator and was his confidant, therefore, the petitioner had been appointed as an Executor of the Will by the Testator.

62. She submits that though Mr. Primal Oswal was also appointed as an Executor of the Will, due to his preoccupation, he did not join in as a petitioner in the present petition. He, however, gave an Affidavit dated 30.12.2015 (Ex.PW1/C) stating that he had no objection to the petitioner filing the present petition.

63. She further submits that though the Objector tried to raise a doubt by contending that Mr. Primal Oswal refused to join as a petitioner in the present petition, as he did not wish to be a part of the alleged fraud, she herself did not produce Mr. Primal Oswal as a witness. She submits that the contention of the Objector, therefore, is liable to be rejected.

64. She submits that the reliance of the Objector on Section 224 of the ISA is unfounded, as even a single Executor can maintain the Probate Petition. In support, she places reliance on the Judgment of the Division Bench of this Court in H.P.S. Chawla v. Dr. N.P.S. Chawla & Ors., 2005 SCC OnLine Del 1006; the Judgment dated 24.08.2022 passed by the Madras High Court in T.O.S.NO. 24 of 2008 titled K.S. Varadharajan v. S.K. Venkatesan; and the Judgment of the Calcutta High Court in Pradip Sancheti v. Sri Sanjay Kumar Modi, 2016 SCC OnLine Cal 5464.

65. The learned counsel for the petitioner further submits that the Objector tried to raise a doubt on the genuineness of the subject Will by citing the alleged difference in the spellings of the name of the Testator in the subject Will. The Objector contended that the Testator used to spell his name as “Davinder” and would not have misspelt his name as “Devendra” in the subject Will. She submits that apart from the fact that this is a minor discrepancy, even otherwise, the Testator used to be described with both the above spellings, as also as “D.K. Jain”. She submits that the same is evident from various documents (Ex. PW1/G to PW 1/Z) that have been filed by the petitioner along with his additional evidence by way of an affidavit (Ex.PW1/2). She submits that even the Objector, in her objections, has also referred to the Testator as “D.K. Jain”. She submits that to cover up, in her crossexamination, the Objector states that the said reference was to the “unofficial name” of the Testator.

66. She submits that from the testimony of PW-2, the due execution of the subject Will by the Testator and its attestation thereof by the witnesses, is duly proved. The alleged suspicious circumstances contended by the Objector, have been answered. She submits that, therefore, the present petition be allowed and Probate of the subject Will be granted.

SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR THE LEGAL REPRESENTATIVE NO. 1 - SMT.

USHA JAIN

67. Mr. Darpan Wadhwa, the learned senior counsel appearing for the Legal Representative No.1- Smt. Usha Jain, while adopting the submissions made by the learned counsel for the petitioner, further submits that though the Objector tried to raise an objection that the subject Will gives an unnatural bequest only to the wife of the Testator, there is nothing unnatural in the same. He submits that the children of the Testator were adults, in their late 20s/early 30s, and have been given various properties by their parents, that is, the Testator and Smt. Usha Jain. He submits that, therefore, there is nothing unnatural in the Testator leaving all his properties to his wife. In support, he places reliance on the Judgment of the Supreme Court in Kavita Kanwar v. Pamela Mehta & Ors., (2021) 11 SCC 209, and the Judgment of the Division Bench of this Court in Khazan Singh v. State, 1991 SCC OnLine Del 494.

68. He further submits that, in her evidence by way of an affidavit (RW2/A), the Objector also sought to contend that the subject Will appears to have been made on fresh paper that does not appear to be ten years old, and that the signature of the Testator on the last page appears to be under the printed portion, thereby contending that the subject Will is forged and fabricated. He submits that apart from the fact that this would amount to an admission of the Objector that the subject Will indeed bears the signatures of the Testator, in any case, the plea is liable to be rejected on a mere perusal of the subject Will. He submits that merely because it is ten years old, does not mean that the paper would turn yellow, as is contended by the Objector. Further, he submits, the signatures of the Testator on the last page, in fact, appear at a natural place, where the Will ends, which also supports the plea of the petitioner as also of the Legal Representative No.1 - Ms. Usha Jain that the subject Will is genuine and natural. In support, he places reliance on the Judgment of Supreme Court in Surendra Pal & Ors. v. Dr.(Mrs) Saraswati Arora & Anr., (1974) 2 SCC 600.

69. As far as the signatures on the subject Will are concerned, he draws my attention to the Orders dated 24.02.2016, 02.05.2018, and 19.12.2019, to submit that Smt. Usha Jain was even willing to have the signatures on the subject Will tested through the CFSL, however, it was the Objector, who later denied the same and stated that she would not be bound by the opinion of the CFSL. Taking note of the same, this Court stated that no useful purpose would then be served by sending the subject Will to the CFSL for opining on the authenticity of the signatures of the Testator on the subject Will.

70. He further submits that the Objector herself never produced any expert witness in support of her submission that the signatures of the Testator are forged or that they appear under the typed portion on the last page. He submits that at every stage, she tried to set up a new case as far as the signatures of the Testator on the subject Will are concerned. In support, he places reliance on the Judgment of the Supreme Court in Bharpur Singh (supra), and the Judgment of the Division Bench of this Court in Ved Prakash v. Om Prakash Deceased through Legal Heirs & Ors., 2012 SCC OnLine Del 5479.

71. He submits that as far as the misspellings of the name of the Testator in the subject Will are concerned, the Testator used to spell his name differently, as is evident from various documents that have been filed by the petitioner along with his additional evidence by way of affidavit (Ex.PW1/2). He further submits that the attesting witness to the Will, Mr. Mahesh Gupta (PW-2), in his testimony, has mentioned that while working closely with the Testator, he has seen the Testator spell his name in different ways.

72. With respect to the discrepancy in the age of the legal representatives in the subject Will, he submits that a mere deviation of one or two years in the age of legal representatives in the Will, cannot invalidate the subject Will, especially when the execution and attestation of the subject Will is duly proved.

73. He further submits that the Objector herself, in her evidence by way of an affidavit dated 23.03.2020 (Ex.RW2/A), referred to and sought to exhibit Letter/Agreement dated 11.06.2014 (Mark ZB), and the Agreement dated 15.03.2016 (Mark Y) executed between herself and the Legal Representative No.1- Smt. Usha Jain, containing her acknowledgement to the due execution and validity of the subject Will. Later, in her cross-examination, however, she sought to deny the said documents (Mark ZB and Mark Y) by stating that Smt. Usha Jain had not produced the originals of the same. He submits that the originals of these documents were produced and the Objector was confronted with the same, however, she denied the same by contending that these documents were executed by her under undue influence.

74. He submits that even the learned Joint Registrar (Judicial), who recorded the evidence of the Objector, has repeatedly mentioned about the demeanour of the Objector during her cross-examination, and also her attempts to evade answering the questions put to her. He submits that the denial of these Agreements by the Objector, therefore, was mala fide and is liable to be rejected by this Court.

75. He submits that there are other documents as well, that is, the Affidavit-cum-No Objection dated 11.06.2014 executed by the Objector (Mark ZC), Special Power of Attorney dated 11.06.2014 signed between Smt. Usha Jain and the Objector (Marked ZD), Relinquishment Deeds dated 12.05.2014 executed, inter alia, by the Objector (Mark ZE to Mark J), admitting to the due execution and validity of the subject Will of the Testator. He submits that, again, the Objector denied her signatures on these documents with a mala fide intent and only to wriggle out of her admissions contained in these documents. He submits that later, on being confronted, the Objector admitted her signatures on these documents, however, sought to raise a new contention that the signatures were obtained by Smt. Usha Jain by undue influence and without letting her read the said documents. He submits that this was a new defence, which was never taken by the Objector before, and is liable to be rejected.

76. He submits that as far as the appointment of PW-2, as a Director of Eden Park Hotels Private Limited is concerned, the Objector had herself consented to the same, as is evident from the letter dated 19.07.2014 jointly addressed by her and Smt.Usha Jain to Eden Park Hotels Private Limited (Ex.RW-2/XR1C). In fact, the removal of the Objector from the said Company has been upheld by this Court in the Judgment dated 12.04.2023 passed in CO.A(SB) 57/2015, titled Priya Jain v. Laguna Holdings Pvt. Ltd. & Ors.. The SLP against the said judgment, being SLP (Civil) Diary NO. 30733/2023, titled Priya Jain v. Laguna Holdings Pvt. Ltd. & Ors., was also dismissed by the Supreme Court vide Order dated 25.08.2023.

77. He submits that the plea of the Objector that the petitioner or the witness to the Will, PW-2 Mr.Mahesh Gupta, got any financial benefits from Smt. Usha Jain, also remained unsubstantiated, and the Objector has made mere allegations against them without any proof. In support, he places reliance on the Judgment of Supreme Court in Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr., (1982) 1 SCC 20.

78. On the averment of the Objector that the subject Will does not cover the shares held by the Testator in Public Listed companies, he submits that the residuary Clause, that is, Clause 7 of the subject Will, takes care of all the remaining assets of the Testator. He further submits that since the holding in the Public Companies keeps varying based on the buying and selling of shares, it would be futile to mention the same in the subject Will.

79. On the alleged discrepancy in the number of shares held by the Testator in Luxor Writing Instruments Private Limited, he submits that not only was this issue not put to the witnesses at the time of recording of their evidence, but even otherwise, in terms of Section 76 of the ISA, the same cannot invalidate the Will. In support of his submission, he places reliance on the Judgment of the Calcutta High Court in Gunjari Das v. Subal Chandra Das & Ors., 2009 SCC OnLine Cal 1289.

80. He submits that the mere fact that the Testator has not executed any Codicil even after ten years of executing the subject Will, is of no legal consequence.

81. He further submits that since the registration of a Will is not mandatory under law, no adverse inference on the genuineness of the Will can be drawn merely on this ground. In support, he places reliance on the Judgment of Supreme Court in H. Venkatachala Iyengar (supra).

SUBMISSIONS OF THE LEARNED SENIOR COUNSEL APPEARING FOR THE LEGAL REPRESENTATIVE NO. 4 - MS.

POOJA JAIN

82. Mr.Rajiv Nayar, the learned senior counsel appearing for Mrs.Pooja Jain, while adopting the submissions of the learned counsel for the petitioner, and the learned senior counsel for Legal Representative No.1, further submits that the statutory compliances under Section 63(c) of the ISA and Section 68 of the Indian Evidence Act, 1872 (in short, „Evidence Act‟) have been duly proved through the testimony of PW-2 - Mr. Mahesh Gupta.

83. He reiterates that the Objector had admitted to the validity and genuineness of the subject Will in the Letter/Agreement dated 11.06.2014 (Mark ZB).

84. He submits that the allegation that the subject Will makes an unnatural bequeath, is also liable to be rejected, inasmuch as, the Objector has herself admitted that she not only received various properties from the Testator and Smt. Usha Jain, as gifts, but, in fact, has also gone ahead and sold them for huge consideration.

85. He reiterates that the Testator used to spell his name in different ways in different documents, and merely because the subject Will does not contain the spellings, which the Testator most popularly used, will not create a suspicion on the subject Will. He submits that in terms of Section 76 of the ISA, even an error in the name of the legatee is not a suspicious circumstance, and the same cannot invalidate the subject Will. The same must apply even in the case of misspelling of the name of the Testator. In support, he places reliance on the Judgment of the Supreme Court in Mohd. Rahim Ali v. State of Assam & Ors., 2024 SCC OnLine SC 1695; and of the Rajasthan High Court in Samela Ram v. Chandan Mal, 1966 SCC OnLine Raj

121.

86. As far as the objection on the maintainability of the petition, having been filed by only one of the Executors, is concerned, he submits that the subject Will states that it is only for given circumstances that both the Executors must have a unanimous decision. These are mentioned in Clauses 9 and 10 of the subject Will. He submits that Section 224 of the ISA does not mandate that both the Executors must jointly file the Probate Petition. In fact, Section 311 of the ISA allows any one of the Executors to act for all. In support, he places reliance on James Noel Anthony Hobbs (supra), Eunice Annette Johnson (supra), Shirin Baman Faramarzi v. Zubin Boman Faramarzi & Anr., 2017 SCC OnLine Bom 1807, and Suresh Chandra Dutta Banik, 2016 SCC OnLine Cal 8390,.

87. He submits that Mr.Primal Oswal, has even given an Affidavit dated 30.12.2015 (Ex.PW1/C) stating that for his own personal reasons, he could not join in the filing of the petition. The Objector did not produce him as a witness, in case she wanted to dispute his position as an Executor or in support of her plea that he was not supporting the genuineness of the subject Will. He submits that the petitioner had stated that he had addressed an e-mail dated 18.05.2015 to Mr.Primal Oswal, asking him to join in the filing of the present petition, however, he did not receive any response from him. Mr.Primal Oswal, however, did not dispute the genuineness of the subject Will at any point of time. He submits that, therefore, this petition should be allowed and Probate of the subject Will of the Testator should be granted.

ANALYSIS AND FINDINGS

88. I have considered the submissions made by the learned counsels for the parties.

89. Section 63 of the ISA provides the set of rules in terms of which a Will shall be executed. The said Section reads as under: “Section 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.”

90. Section 68 of the Evidence Act provides as to how an attested document is to be proved. The said Section reads as under:

91. The Supreme Court in H. Venkatachala Iyengar (supra), while interpreting the requirements of a valid Will under Section 63 of the ISA, has clearly distinguished the nature of proof required for a Will to be proved. I may quote from the said Judgment as under:

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.

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 all legitimate suspicions should be completely removed before the document is accepted as the last will of 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. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. 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. 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 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 [(1946) 50 CWN 895] “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.”

92. In Pentakota Satyanarayana & Ors. v. Pentakota Seetharatnam & Ors., (2005) 8 SCC 67, the Supreme Court has explained how the requirement of Section 68 of the Evidence Act is to be met by the propounder of the Will, as under: “22...... Section 68 of the Evidence Act, 1872 deals with proof of execution of document required by law to be attested. This section lays down that if the deed sought to be proved is a document required by law to be attested and if there be an attesting witness alive and subject to process of the court and capable of giving evidence, he must be called to prove execution. Execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act. ***** It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses signed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word ―execution‖ in Section 68 includes attestation as required by law.‖

93. More recently, in Shivakumar & Ors. v. Sharanabasappa & Ors., (2021) 11 SCC 277, the Supreme Court, while summarising the said law, has laid down the following propositions:

12.4. 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.

12.5. 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.

12.6. 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”.

12.7. 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 abovenoted 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 circumstances 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.

12.8. 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?

12.9. 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.”

94. From the above, it would be evident that it is for the petitioner to prove that the subject Will has been executed by the Testator in sound disposing mind, and has been duly executed in terms of Section 63 of the ISA. The petitioner is also to prove that the Will is not shrouded by any suspicious circumstances. At the same time, as the Objector contends that the signatures of the Testator have been forged or that the signatures have been obtained on blank papers on which the subject Will has been later typed, the onus of proving these allegations shall be on the Objector.

95. Keeping in view the above parameters, I must now deal with the objections and contentions raised by the parties. Execution and attestation of the subject Will

96. In the present case, as far as the due execution and attestation of the Will is concerned, the petitioner (PW-1) has not only examined himself, wherein he states that being an employee of the Luxor Group, he had seen the Testator sign on various documents and identified the signatures of the Testator on the subject Will, but has also produced the attesting witness- Mr. Mahesh Gupta (PW-2) who deposed about the due execution and attestation of the subject Will by the Testator, alongwith the other attesting witness namely Shri V. K. Jain, by stating as under in his evidence by way of affidavit: “I have seen the original Will of Shri Davinder Kumar Jain dated 11.12.2004 comprising of 8 sheets. I identify the signature of Shri Davinder Kumar Jain at the end of each page and also at the end of the Will, The signature of Shri Davinder Kumar Jain are at points A[1] to A[8]. I also signed the Will as attesting Witness No. 1 and I identity my signature on the last page of the Will at point B. I also identify the signature of Shri V.K. Jain, the second attesting witness to the Will and his signature appear at point C. The Will is exhibited as Ex. PW-2/Z.

97. The witness was cross-examined at length, including on the execution of the subject Will. In his cross-examination, he stated as under: “Q.81 Should I take it that when the Will Ex. PW-2/Z was shown to you it was already lying typed?

D.K. Jain along with Mr. V.K. Jain which started at around 11.00 a.m. Q.84 When did you leave the room of Mr. D.K. Jain on 11.12.2004?

Q.85 I put it to you that this Will Ex. PW-2/Z was not signed by Mr. D.K. Jain on 11.12.2004 or on any other date. What do you have to say?

98. The learned senior counsel for the Objector/Legal Representative No.5 has submitted that the testimony of these two witnesses cannot be accepted inasmuch as they have been given pecuniary benefits for deposing falsely to the genuineness of the subject Will. In this regard, he has drawn my attention to the crossexamination of these witnesses, to submit that they have been given undue rise in their employment in return, with Mr. Mahesh Gupta (PW-2) even been appointed as a Director in Eden Park Hotels Private Limited, a cash-rich company of which earlier Legal Representative No.5 was the Director. He submits that Mr. Mahesh Gupta (PW-2) had earlier also been found filing false returns claiming transfer of shares by the Testator to Ms. Pooja Jain, who is siding with the sole beneficiary- Smt. Usha Jain, under the subject Will. He submits that in spite of repeated asking, these witnesses have refused to produce their income tax records, which would show the pecuniary benefits being transferred to them for deposing falsely.

99. I have considered the said submissions of the learned senior counsel for the Legal Representative No.5, however, find no merit in the same.

100. Apart from repeatedly contending that the petitioner and PW-2 have been given astronomical rise in the Group of Companies, no cogent material for the same has been placed by the Objector/Legal Representative No.5. Merely vague suggestions in this regard have been given to these witnesses during their cross-examination, being primarily drawn from the refusal of these witnesses to produce their income tax records. I am of the opinion that no adverse inference can be drawn against these witnesses only because they refused to produce their income tax records, which are confidential in nature.

101. As far as the petitioner is concerned, the Objector, in her crossexamination, states that her assertion that the petitioner has been given undue benefits by Mrs. Usha Jain, is on basis of what she was told by Mrs. Payal Kapoor. Therefore, these statements, at best, were hearsay. I quote from her cross-examination as under:- ―Question No.70: You have stated in your objections as well as in your evidence that Mr. Sanjay Kalra was given monetary benefits and he was promoted. Can you tell us what monetary benefits Mr. Sanjay Kala was given and where the promotion was given to him? (At this stage, the witness has gone through objections and the affidavit filed by her) Answer: I believe he got promotion in various group companies. My eldest sister Payal Kapoor, L.R No. 2 told me that Sanjay Kalra told her that Pooja Jain Gupta gave him hefty amount for presenting the forged WILL and thereafter Sanjay Kalra was given various positions in the group companies of my Dad. Question No.71: I put it to you that you are making a wrong allegation against Mr. Sanjay Kalra and that Ms. Payal Kapoor has never made such a statement. What do you Answer: I am giving the correct answer as she in person told me this. Question No.72: I put it to you that Mr. Sanjay Kalra had never been the employee of any of Luxor Group of Companies and that he had been the Chartered Accountant/Auditor of the Luxor Group of Companies. What do you Answer: Ms. Payal Kapoor told me that he has been an employee of the Luxor Group of Companies, who has got out of turn benefits and increments after my father‟s demise. I am not aware whether he was Chartered Accountant/Auditor of the Luxor Group of Companies. (Volunteered. As my father had many Chartered Accountants in his group companies). Question No.73: I put it to you that you are making a wrong statement to the aforesaid question as you were/are fully aware that Mr. Sanjay Kalra was the Chartered Accountant Auditor of the Luxor Group of Companies at the time of filing of your evidence affidavit. What do you have to say? (At this stage, para no.12 of the affidavit of evidence of the witness has been shown to her) Answer: It is completely incorrect. (volunteered. As my eldest sister Ms. Payal Kapoor had mentioned Mr. Sanjay Kalra so is mentioned in the affidavit) Question No.74: Have you in your objections as well as in your evidence stated that the aforesaid information was on the basis of the information received by you from Ms. Payal Kapoor? Answer: It is correct that her name is not mentioned in the affidavit and the objections. (Volunteered. But she has told me several things personally on this forged WILL and its witnesses and its executors) Question No.75: I put it to you that you are making a wrong allegation against Mr. Sanjay Kalra and defaming him. What do you Answer: No, I am not.”

102. As far as the submission of the Objector/Legal Representative No.5 qua the filing of false returns by Mr. Mahesh Gupta (PW-2) claiming transfer of shares by the Testator to Ms. Pooja Jain is concerned, Mr. Mahesh Gupta (PW-2), in his cross-examination has duly clarified that the same was a clerical mistake committed not by him, but by the Company Secretary and hence was duly rectified. I may reproduce the relevant portion of his cross-examination as under: “Q.298 Did you ever get any correspondence from the ROC on your aforesaid email, pointing out that the information on Form 20 B, filed vide service request dated 12.11.2012 was incorrect and not supported by a resolution?

103. Interestingly, it is not the case of the Objector/Legal Representative No. 5 that on coming to know about the wrong filing of the return, the Testator took any action against the PW[2]. In case the said return had been filed by the PW-2 out of malice, surely the Testator would have taken some action against him, however, there is no evidence of the same produced by the Objector. On the other hand, the Objector, in her cross-examination, tried to set up the case that the Testator did not take action against the PW-2 as he sought his apology. I may quote from the cross-examination, as under:- “Question No.220: Is it correct that your beloved father equally loved all other legal heirs i.e. two daughters and one son, including LR. No.4 ? Answer: Well, he was closest to me. I look like him and the others my eldest sister Payal was married and Pankaj, hẹ was caring about and Pooja (LR no.4) in year 2012 to 2013 had broken his trust completely by getting his shares owned by him in one of his companies Luxor International by Chartered Accountant Mr. Mahesh Gupta sending an email on her instructions to the ROC, so, in that case, lie was completely disheartened by her behavior: Question No.221: So when his heart was disheartened, did your beloved father had taken any action or reaction against LR No.4 ? Answer: When such a situation happened, somewhere around November-December, 2012, my dad called me in a rush to the head office 229, Okhla Industrial Estate, Phase-III, Delhi-110020 and showed me in person MCA records which clearly states that his shares have been shifted from 50% equity in the company to 0% through the email of Mr. Mahesh Gupta and have been put while he is living in the name of Pooja Jain, my sister, to that he got very angry and called Pooja Jain and Mahesh Gupta and gave them a big thrashing of cheating on him and his shares while he is alive, then, he said he will take criminal action against Mahesh Gupta. After a lot of convincing with my dear father Davinder Kumar Jain Ji, it took me a while to make him agree not to put any criminal complaint against Mahesh Gupta as Pooja because she is a part of our family will get entangled and to make them apologize and get the transaction reversed. Question No.222: In view of above, whether services of Mr. Mahesh Gupta was terminated or he continued to serve as Chartered Account? Answer: Mr. Mahesh Gupta really cried in front of my father and said that whatever I did with Pooja shall never repeat again, I have served you for so many years, so, let me be in service and I will serve with full honesty in future. My father had a kind heart with all his employees and people as general and I had convinced him to take the criminal complaint back from Mr. Mahesh Gupta, so, he agreed to let him continue his services but his actions will be recorded from thereon in the company as my father expected pure honesty and he was a very honest person.”

104. The above statement does not inspire any confidence at all. It is not the case of the Objector that Mr. Mahesh Gupta (PW-2) was even removed from the important positions that he held in the Company or his authority was withdrawn by the Testator. The statement appears to be a completely concocted story. The Objector is merely trying to discredit the testimony of the witnesses, based on allegations that do not raise suspicion sufficient enough to discredit their testimony.

105. As far as the appointment of the Mr. Mahesh Gupta (PW-2) to the Board of Eden Park Hotels Private Limited is concerned, the learned counsels for the Legal Representatives nos. 1 to 4 have rightly relied upon the letter dated 19.07.2014, jointly addressed by the Objector and Smt.Usha Jain to Eden Park Hotels Private Limited (Ex.RW-2/XR1C), appointing Mr. Gupta as the Director of the said Company. When cross-examined on this letter, the Objector gave vague answers, as under: “Question No.196: Is it correct that Mr. Mahesh Gupta was appointed as the Vice Chairman and Director on the Board of Directors of Eden Park Hotels Pvt. Ltd. with the consent of Mrs. Usha Jain and yourself? Answer: No. Mrs. Usha Jain had filed an application in the Company Law Board for impleading Mr. Mahesh Gupta and myself. Mrs. Usha Jain and her legal team took an exparte order removing me as the Executive Director of DKJ Group in Eden Park Hotels Pvt. Ltd. On that, I moved another application which was dismissed by the Company Law Board and then I went in for appeal in the Hon‟ble High Court of Delhi and that case is still pending. (At this stage, at the request of Ld. Counsel for LR no.1, witness is shown the original letter dated 19.07.2014) Question No.197: Does the above said letter dated 19.07.2014 have your signature at point „A‟? Answer: Yes. This is my signature but many documents were forced under undue influence by my mother Usha Jain and Pooja Jain saying that lots of official formalities have to be completed for Papa and as me being his closest and confident and inheritor of the entire estate, business, properties, shares, please sign these 100 plus documents quickly and I will take care of your share in the estate of my husband Davinder Kumar Jain. (Volunteered. They did not allow me to read the contents of any of the papers, Usha Jain (mother) and Pooja Jain.) The document i.e. letter dated 19.07.2014 is exhibited as Ex.RW-2/XR1C. Question No.198: I put it to you that on 19.07.2014, you had consented to the appointment of Mr. Mahesh Gupta as Vice Chairperson and Director on the Board of Directors of Eden Park Hotels Pvt. Ltd. and now you are deposing falsely. What do you Answer: This is completely wrong. (At this stage, witness is shown question no.189 of her cross-examination dated 13.07.2022.) Question No.199: Please see your volunteer statement in response to question no.189. Can you please specify as to whether these statements which were made voluntarily by you, form part of your objections to the probate petition or the evidence by way of affidavit? Answer: Yes, I have mentioned it.”

106. In fact, the removal of the Objector from the said Company has been upheld by this Court in the Judgment dated 12.04.2023 passed in CO.A(SB) 57/2015, titled Priya Jain v. Laguna Holdings Pvt. Ltd. & Ors.. The SLP against the said judgment, being SLP (Civil) Diary NO. 30733/2023, titled Priya Jain v. Laguna Holdings Pvt. Ltd. & Ors., was also dismissed by the Supreme Court vide Order dated 25.08.2023.

107. The learned senior counsel for the Objector has also contended that the petitioner could not have been a natural choice of the Testator for being appointed as an executor of the Will, and similarly, PW-2 could not have been a natural choice of the Testator for standing as a witness to an important document like the Will of the testator. He submits that the natural choice for the same would have been the close family relations or persons holding important positions in the Group of Companies, rather than junior officers like the petitioner and the PW-2.

108. I am, however, unable to accept the said submission of the learned senior counsel for the Objector.

109. The petitioner has stated that he was looking after the financial affairs of the Testator as well as of all his children for a number of years, in his personal capacity as a Chartered Accountant. The Testator had even given him Power of Attorney(s) to represent his interest before the Tax Authorities. Though, the Objector vaguely tried to deny the same, this stands proved from the documents Ex. PW1/AA to Ex. PW1/EE, Ex. PW1/HH to Ex. PW1/JJ, and Ex. PW1/OO. He stated that he had also represented the Objector in tax matters on the basis of authority letters (Ex PW1/OO). In her crossexamination, though initially the Objector tried to deny her knowing the petitioner, but finally accepted that she knew who he was and that he represented her before the tax authority. He was, therefore, not a stranger to the Testator, but was his confidant.

110. It is not for this Court to speculate why the Testator would not choose a family relation or an officer holding a higher rank than the petitioner to be the Executor of the subject Will. It could also be because he wanted an outsider, who is aware of the accounts and the running of the business, to act as an Executor, rather than a family member who may have a personal interest in favour of one or the other legal heir.

111. PW-2, Mr. Mahesh Gupta was the Senior Manager (Finance and Accounts) in the Luxor Group of Companies in May 1996. He, in fact, fairly admitted that he did not know that he was called by the Testator on the date of the execution of the Will for standing as a witness to the subject Will. He admitted that he was called by the testator stating that some financial matters had to be discussed with him, and it is in that meeting that the testator asked him to stand as a witness to the subject Will. It again cannot be speculated as to why the testator would have chosen the PW-2 to stand as a witness to an important document like his Will. It could also be for the reason that the Testator knew that PW-2 being only an employee of the Group of Companies, would not have any personal interest on a later date to deny the due execution of the subject Will, or to take sides with one of the legal heirs.

112. In this regard, I may draw support from the Judgment of Supreme Court in Indu Bala Bose (supra), where the Supreme Court, while rejecting a similar objection of an objector to the Will, held that normally a known reliable person is only called upon by the Testator to stand as a witness to the Will, and not a stranger. The Supreme Court further held that the testimony of an attesting witness cannot be discredited merely for him being a partisan witness, having a professional relationship with the Testator. I may quote from the said Judgment as under:

113. The petitioner, therefore, has been able to prove the due execution and attestation of the subject Will by the Testator. Admission of the Objector/Legal Representative No.5 of the subject Will

114. What is most important is that the Objector/Legal Representative No.5 has executed a Letter/Agreement dated 11.06.2014 (Mark ZB), Affidavit-cum-No Objection dated 11.05.2014 (Mark ZB), and Relinquishment Deed(s) dated 12.05.2014 (Mark ZE to Mark ZJ), admitting to the due execution of the subject Will of the Testator. The Letter/Agreement dated 11.06.2014 (Mark ZB) specifically records as under:

and acknowledgement of this letter, Affidavit of No-Objection to the grant of the Probate Petition titled as TEST Case No. 54/2014 in the Delhi High Court, Further, you will sign as required any other documents that I consider necessary for implementing the succession.”

115. Along with the above Letter, the Objector/Legal Representative No.5 also executed an Affidavit-cum-No Objection dated 11.06.2014 (Mark ZC), wherein she stated as under:

116. She also executed Relinquishment Deed(s) dated 12.05.2014 (Mark ZE to Mark ZJ) which, in turn, recorded her admission to the Will as under: “And whereas Mr. Davinder Kumar Jain son of Shri Satpal Jain, executed an un-registered Will dated 11.12.2004, whereby he bequeathed all the rest and residue of his estate which he may die possessed of and entitled to, in favour of his wife Smt. Usha Jain, absolutely.”

117. Though, she later went on to vaguely deny the validity of the said documents by contending that she was forced to sign the same under undue influence and coercion, her evidence inspires no confidence and her denial is clearly an after-thought. In fact, in her own evidence by way of an affidavit (Ex.RW2/A), as far as the Letter/Agreement dated 11.06.2014 (Mark ZB) and the Agreement dated 15.03.2016 (Mark Y) executed by her are concerned, the Objector/Legal Representative No.5 states as under: “My mother, Mrs. Usha Jain vide her letter/agreement dated 11th June, 2014 read with agreement dated 15.03.2016 had agreed to give me Rs. 2,30,000/- per month for my expenses, as were been given to me by my father, but, she is not paying the same to me, in spite of several reminders. Both the agreements bear mine signatures as well as Mrs. Usha Jain. Both be exhibited.”

118. From the above, it is evident that the Objector/Legal Representative No. 5 has admitted to the execution of the subject Will by the Testator in various documents, however, has merely given vague denial of such documents in her cross-examination. This Court must draw an adverse inference against the Objector and not allow her to approbate and reprobate on the binding nature of the documents on which she herself was relying upon. As noted hereinabove, the learned Joint Registrar (Judicial), while recording her evidence repeatedly commented on her demeanour and even recorded how she tried to stall the evidence and gave evasive answers.

119. The reliance of the learned senior counsel for the Objector on the Agreement dated 15.03.2016 (Mark Y) to wish away the effect of the above Agreements and documents, also cannot be accepted. The said agreement has been signed by the Objector to transfer her shares in the Eden Park Hotels Private Limited to Mrs. Usha Jain- Legal Representative No. 1. The said agreement records that the same shall not affect the pending dispute between the parties in the present Probate Petition. The said agreement, however, does not state that the earlier documents executed by the Objector, acknowledging the due execution of the subject Will, stand cancelled or even challenged. In fact, the Objector has not filed any proceedings challenging the validity or due execution of the above mentioned Agreements/documents.

120. For the above reasons, in my opinion, the Objector is even otherwise estopped from challenging the due execution and validity of the subject Will, and her objections against the grant of the Probate are liable to be dismissed on this short ground itself. Forensic examination of the Will

121. It is also important to note that earlier it was only Ms. Payal Kapoor, the Legal Representative No. 2, who had disputed the signatures of the Testator on the subject Will. She had also filed a handwriting report dated 27.03.2016 of one Mr.Deepak Jain, who, however, was never produced as a witness. As far as the Objector is concerned, she never produced any Handwriting Expert.

122. On 12.01.2016, the Legal Representative No. 2- Ms. Payal Kapoor, who till then was objecting to the grant of the probate, filed an application, being I.A. No.612/2016, seeking permission to have the subject Will examined by a Handwriting Expert. The said application was listed before this Court on 24.02.2016.

123. On the said date, the Legal Representatives Nos. 1 and 4, that are, Smt. Usha Jain (the sole beneficiary) and Ms. Pooja Jain (who is supporting the Legal Representative No.1 since the inception of these proceedings), submitted that the Will should be sent to the CFSL as it is desirable to obtain an independent report. This Court expressed its agreement with the submission made by the Legal Representative Nos. 1 and 4, and had observed that it would be appropriate to call for a report from the CFSL with regard to the execution of the Will by the Testator and the two witnesses, after the evidence of the attesting witnesses and the petitioner/executor has been recorded. I quote from the said order as under: “Mr. Sethi who appears for LR Nos. 1 and 4 submits that the said Will may be sent to the CFSL to call for a report as it is desirable to obtain an independent report. In my view, in the facts and circumstances of the present case, it would be appropriate to call for the report from the CFSL with regard to the execution of the Will by the testator and the two witnesses. However, the Will shall be sent to the CFSL only after the evidence of the two attesting witnesses and the petitioner/executor has been recorded.”

124. Thereafter, the Legal Representative No. 1 filed an application, being I.A.5955/2018, again requesting this Court that the subject Will be sent to the CFSL for examination, in terms of the Order dated 24.02.2016. However, the Objector/Legal Representative No. 5, Ms.Priya Jain refused to be bound by the report of the CFSL, because of which, this Court, by its Order dated 19.12.2019, observed that it was not appropriate to call for the report from the CFSL at that stage, however, if, after the evidence is recorded, any need is felt, a direction can be issued for calling for the CFSL report. I quote from the said order as under:

125. From the above, it would be evident that not only did the Objector not lead any positive evidence in support of her denial of the signatures of the Testator on the subject Will or on her plea that the paper on which the subject Will is printed is not of the vintage the date of the execution of the Will, but also refused the suggestion of the Court that the subject Will be sent for a forensic examination by the CFSL, however, on the condition that the parties shall be bound by the report that is given by the CFSL.

126. This again persuades me to draw an adverse inference against the Objector, and to find no merit in the objection as far as the proof of the subject Will being signed by the Testator is concerned.

127. As far as the submission of the Testator that on the last page of the subject Will, the signature of the Testator appears under the typed portion is concerned, I have examined the original of the subject Will, and I do not find any merit in the said submission of the Objector. From the naked eye examination, the signature clearly appears to be over the typed portion.

128. On the objection of the Objector that there is no continuity in the pages of the subject Will, and between the last paragraph of each page and opening of the next page, I again find no merit in the same. The subject Will is clearly in continuity and with paragraph numbering, signed on each page by the Testator.

129. In view of the above, I hold that the petitioner has been able to prove the due execution and the attestation of the subject Will by the Testator and the two attesting witnesses. Mental State of the Testator on the date of the execution of the subject Will

130. There is no dispute raised by the Objector on the mental faculty of the Testator on the date of the execution of the subject Will. In fact, in answer to Question No. 4 in her cross-examination recorded on 06.10.2021, she admitted that the Testator had no mental illness right till his unfortunate demise on 18.03.2014. I quote the question and answer as under:- “Q[4]. Is it correct that your late father was not suffering from any mental illness and was of sound disposing mind till his death i.e. 18.03.2014? Ans. Yes. He had no mental illness but he was suffering from other ailments.” Suspicious circumstances surrounding the subject Will

131. At the outset, I would remind myself of the prism through which the Will is to be tested as far as the plea of it being shrouded with suspicious circumstances is concerned. The Court is neither to start on the premise of doubting the Will, nor of accepting the Will. It must be remembered that the Testator is no longer there to offer explanation on circumstances in which he/she executed the Will. It is therefore, by applying judicial principles, that the Court is to determine the merit in alleged suspicious circumstances pleaded against the Will. I may herein quote from the judgment of the Supreme Court in Shivakumar & Ors.(supra), as under “12.6. 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”. xxxx

12.8. 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?

12.9. 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.” Unnatural disposition by the Testator in the Will

132. The first suspicious circumstance alleged by the Objector/Legal Representative No. 5 is that though there were unmarried children of the Testator, the Testator not only excluded them from any bequeath, but also did not give any reasons for such exclusion.

133. Though, at first blush, this submission looks attractive, however, when it is examined in the context of the present case and the parties, I find no merit in the same.

134. The children, at the time of the execution of the subject Will, had attained the age of majority, and from the testimony of the Objector/Legal Representative No. 5 herself, it is quite evident that the Testator and even the sole beneficiary, that is, the Legal Representative No. 1, had given various properties to the Objector/Legal Representative No. 5 and other children for maintaining their lifestyle in accordance with the standard of the family.

135. The bequest under the subject Will is not to a stranger, but to the wife of the Testator, who, after the death of the Testator, is the matriarch and the head of the family. It is not unnatural for a person to ensure that upon his death, his wife takes control of the assets created by him and she is not left to the mercy of the children.

136. The Will also states that in case the Legal Representative No. 1 pre-deceases the Testator, the bequest would change, and different properties would vest in different Legal Representatives. It is, therefore, not as if the Testator wanted to exclude any Legal Representative from the bequest. The intent appears to be that if the wife is alive, all properties must first vest with her. The Testator may have also thought that if the assets are managed by the wife, as the head of the family, it may also bring about unity amongst the children and also maintain her respect. Therefore, I find the bequest to be natural in the present case.

137. In Kavita Kanwar (supra), the Supreme Court, placing reliance on the Constitution Bench judgment in Shashi Kumar Banerjeet & Ors. v. Subodh Kumar Banerjee & Ors., AIR 1964 SC 529, and Uma Devi Nambiar & Ors. v. T.C.Sidhan, (2004) 2 SCC 321, held that mere exclusion of the natural heirs or giving lesser share to them, by itself, will not be considered as a suspicious circumstance. It was observed that a Will is executed to alter the ordinary course of succession, and by the very nature of things, it is bound to result in either reducing/increasing or depriving the share of natural heir. It was held that though it is true that a propounder of the Will has to remove all suspicious circumstances, but the mere fact that the natural heirs have either been excluded or a lesser share has been given to them, would not in itself be a suspicious circumstance.

138. In Khazan Singh (supra), this Court held that the Will in favour of the husband, or vice-versa, to the exclusion of others, stands on a different footing as compared to a Will in favour of other heirs or strangers. A bequest by a spouse in favour of the other is not unnatural or unusual, and is often resorted to keep up amity in the family and sometimes to ensure proper care, status, and respect to the living spouse, after the demise of the other. I quote from the judgment as under: “21. In so far as the exclusion of close relatives and Class-I heirs of the testatrix is concerned, a Will in favour of husband or vice-versa to the exclusion of others, stands on a different footing as compared to a Will in favour of other heirs or strangers. The concept of Will itself envisages preference to one over the other. In our society it is not unnatural or unusual for husband or wife to bequeath his/her whole property to each other to the exclusion of their progeny. It is often resorted to keep up amity in the family and sometimes to ensure proper care, status and respect to the living spouse after the demise of the other. Furthermore in the instant case, although contesting respondent has set up a case that the Will is not genuine, he has not produced any evidence in support thereof. In our opinion, therefore, the stated circumstance is not suspicious. In our view, facts in the instant case are clearly distinguishable from the facts prevailing in Kalyan Singh v. Chhoti (supra) and Ram Pyari v. Bhagwant (supra) relied upon the learned counsel for the respondent.”

139. Therefore, merely the fact that the Testator by the subject Will, has bequeathed all his properties to his wife, is not a suspicious circumstance that can persuade this Court to refuse the grant of the probate. Misspelling of the Name of the Testator and the age(s) of the Legal Representatives in the subject Will

140. The Objector/Legal Representative No.5 has next contended that the spelling of the name of the Testator on the Will is incorrect. It is stated, and not very vehemently denied by the sole beneficiary, that the Testator used to spell his name as “Davinder”, whereas on the Will his name is spelled as “Devendra”.

141. Mr.Malhotra, the learned senior counsel appearing for the Objector/Legal Representative No. 5, submits that the above circumstance raises a grave suspicion on the validity of the subject Will as the Testator, who was a businessman, would not commit such a mistake on an important document like his Will.

142. I do not find any merit in this submission. Mr.Mahesh Gupta (PW-2) has deposed and also produced on record various documents in which there are varying spellings of the name of the Testator. These include important documents like Income Tax Returns and other statutory filing. I am of the opinion that in case the Testator has got the Will prepared from a third party, the third party may have committed such a mistake, which may have been overlooked by the Testator as the Will is supposed to have been executed and attested on the day it was printed. Difference in the spellings of the name of the Testator, in itself is not sufficient to raise a suspicion on the validity of the subject Will, if its due execution and attestation is proved by cogent evidence.

143. Mr.Rajiv Nayar and Mr.Darpan Wadhwa, the learned senior counsels appearing for the Legal Representatives Nos. 4 and 1 respectively, have also placed reliance on Section 76 of the ISA, which though is not strictly applicable to the objection raised by the Objector, but would still throw some light on the fact that a mere error in the name cannot prevent the legacy from taking effect. I quote Section 76 of the Succession Act as under:

144. The Supreme Court in Mohd. Rahim Ali (supra), though in a different context, also took note of the fact that in India, it is not uncommon for a person to write different spellings of his name because of language, pronunciations, habits, or style.

145. Mr.Malhotra, has further highlighted that even the ages of the children of the Testator have not been correctly mentioned in the subject Will. The same, in my opinion, is also not a reason to draw a suspicion on the subject Will. As would be evident from Section 76 of the ISA, quoted hereinabove, such minor misdescriptions do not negate the legacy. Details of shares held by the Testator in Public Companies

146. Much emphasis has been placed by the Objector on the Testator not giving complete details of his shareholdings in Public Listed Companies in the subject Will, which the Objector claims to be of substantial value.

147. Mr.Malhotra, the learned senior counsel for the Objector, has very vehemently submitted that the Testator has given details of his shares held in private companies, some of which were not even having a high net worth, however, the Testator has not mentioned his investments in the Public Limited Companies in the subject Will, which were valued at a huge amount. He submits that this raises a suspicion on the subject Will.

148. I do not find any merit in this submission. It is not unusual for a testator not to mention his/her investments in the Public Limited Companies, as the same might keep changing from time to time, and sometimes even on daily basis if the Testator is speculative in nature. The Testator cannot be expected to list out all his investment in Public Limited Companies in the Will, failing which it may be held that the Will is suspicious.

149. At this point, I may also note that, in the present case, the Testator has also kept a residuary clause in his Will, that is, Clause 7, which covers all the rest and residue of his estate, which was not covered in the Will. I may reproduce the said Clause as under:

7. All the rest and residue of my estate which I may die possessed of and entitled to shall belong to my wife Mrs. Usha Jain absolutely and in case she predeceases me to my all four children in equal shares.

150. Therefore, merely because such investments are not mentioned in the Will, cannot lead to an adverse inference being drawn against the validity and due execution of the Will or make it suspicious. Discrepancy in the number of Shares held by Testator in M/s Luxor Writing Instrument Pvt. Ltd.

151. Similarly, much emphasis has been placed by the Objector on the alleged discrepancy in the number of shares held by the Testator in M/s Luxor Writing Instrument Pvt. Ltd., as on the date of the execution of the subject Will. The learned senior counsel for the Objector has very painfully tried to show that there was a major discrepancy in the number of shares shown to be held by the Testator in the above company in the subject Will, as against the number of the shares actually held by him on the date of execution of the Will.

152. As submitted by the learned senior counsels for the Legal Representatives Nos. 1 and 4, the same, in fact, are the shares which were transferred by the sole beneficiary, that is, the Legal Representative No. 1 to the Testator between the last financial report of the company and the date of the execution of the subject Will. In my opinion, the same cannot lead to any suspicion being drawn on the subject Will. It is not uncommon for a person who drafted a Will to take the figures from the last financial report of the privately held companies. In any case, a minor discrepancy, such as the one highlighted by the Objector, cannot be sufficient to disbelieve the subject Will. Non-registration of the subject Will

153. The learned senior counsel for the Objector further submits that the non-registration of the subject Will casts a doubt on the genuineness of the subject Will. I do not find any merit in the said submission. In law, registration of a Will is not mandatory. In fact, with the registration also, no added advantage in terms of the proof of the Will is obtained. Therefore, only because the subject Will is not registered, it will not cast a doubt on its validity, if otherwise it is proved in law. I may draw support from the judgment of the Supreme Court in Ishwardeo Narain Singh v. Kamta Devi & Ors., (1953) 1 SCC 295. Other suspicious circumstances alleged by the Objector

154. The Objector states that the scribe of the Will is not known; the existence of the Will was not known till the death of the Testator; and that it is strange that the Testator did not execute a Codicil, though he remained alive for almost 10 years after the execution of the subject Will.

155. None of the above can raise a suspicion on the validity of the Will once its execution and attestation has been proved. The manner in which the Will was executed has been described by Mr. Mahesh Gupta (PW-2) in detail. He was in no position to ask the Testator as who had drafted the subject Will for him being only an employee of the Testator.

156. It is not a requirement in law for the propounder of the Will to also prove as to who has drafted the Will for the Testator.

157. As the bequest was only in favour of the Legal Representative No.1, the wife of the Testator, it is natural that he would tell only her about the execution of the subject Will and where he kept it. Disclosing a Will to other legal heirs, while the Testator was alive, may have resulted in a family dispute even during the lifetime of the Testator himself. The other family members might also have exercised undue pressure on him to change his Will, which he must have thought to prevent by concealing it from the other legal heirs.

158. For a Codicil to be executed, it was for the Objector to show the reason why it may have been required. Once the Testator has bequeathed all his properties to his wife, Legal Representative No.1, including the residuary estate, a Codicil may have been required only if Legal Representative No.1 had pre-deceased the Testator, or the relationship of the Testator with any of his other legal heirs either turns sour, or for some unfortunate happening or otherwise, the Testator would have wished to specifically leave a property for a specific legal heir, other than his own wife. None of the above circumstances, or for that fact, any other circumstance, has been shown by the Objector which would have required the Testator to execute a Codicil. Merely because the Testator is happy with the subject Will that was executed around 10 years prior to his death, does not raise a suspicion on the validity of the subject Will. It must also be remembered that it is not denied by the Objector that the Testator remained in good health, both mentally and physically, till his death. It is not the case of the Objector that the Testator has executed any other Will in his lifetime, which may still have persuaded this Court to presume that the Testator was of freckle mind and had the propensity of changing his mind frequently.

159. Mr.Malhotra, the learned senior counsel for the Objector, stated that the sole beneficiary, that is, the Legal Representative No. 1- Smt.Usha Jain, has not entered into the witness box. This, he submits, is for the reason that on being cross-examined, she may have proved that the subject Will is not a genuine one. I find no merit in this submission. Only on such hypothetical assertion, the subject Will cannot be disbelieved. There was no legal requirement for Smt. Usha Jain to enter into the witness box. Even otherwise, being the head of the family, she may have wanted to save herself an embarrassment of being cross-examined by her own daughter, and may have saved her from saying things which may not have been very palatable for her daughter and might have spoiled their relationship. Non-joinder of Mr.Primal Oswal as a petitioner

160. This now brings me to the most important objection of the Objector, both on the maintainability of this petition as also as a suspicious circumstance surrounding the subject Will. The same is the non-joining of the second Executor, Mr.Primal Oswal, as a petitioner in the present petition, and him not deposing as a witness in the present petition.

161. It is not denied that Mr.Oswal is the brother-in-law of the Testator, therefore, he is a close family relation of the Testator, of the sole beneficiary under the Will, as also of the sole Objector now left to the subject Will.

162. On the maintainability of the present petition, Mr.Malhotra has submitted that in terms of Sections 224, 229, and 230 of the ISA, if there are more than one Executors, they have to simultaneously act, and the present petition being filed by only one of the Executors is, therefore, not maintainable.

163. I would first quote the Clauses 2, 9 and 10 of the Will as under: “2. I appoint (1) Mr. Primal Oswal my brother in law and (2) Mr. Sanjay Kalra, my Chartered Accountant as the executors of this will. *****

9. i) My executors shall pay in priority all my liabilities including my death bed and funeral expenses and testamentary expenses and expenses incurred in the recovery and administration of the estate. Such liabilities and expenses shall preferably be paid out of my bank balance if it is not sufficient our of the amounts to be raised by selling assets before distribution to aforesaid successors. ii) However, wherever I have extended "Personal Guarantee" to lenders/banks etc. for extending loans to different companies or business entities, the successor succeeding to my shares in that company or business entity shall substitute his or her "Personal Guarantee" or pay off the lender from his or her personal resources.

10. It is my earnest desire that all my successor live in cordial relationship and in harmony in ease of any clarification or dispute in execution of my will my successors shall abide by the unanimous decision of the executors of this will.”

164. As there are two Executors appointed in the Subject Will, Section 224 of the ISA needs to be considered alongwith Section 311 of the said Act. The same read as under:

exercised by any one of them who has proved the Will or taken out administration.”

165. A reading of the above provisions would show that a Probate may be granted to all the executors simultaneously. However, if there are more than one executor, the power of several executors, in the absence of any direction to the contrary, can be exercised by any one of them, who has proved the Will or take out administration. To put it differently, in terms of Section 311 of the ISA, one of the two executors can maintain this petition, however, this Court would grant a Probate simultaneously to both the executors to act in accordance with the Will, and the powers, subject to the contrary directions in the order granting Probate or in the subject Will, may be exercised by the Executor who has proved the Will or taken out administration.

166. The above reading of the provisions was explained by the Madras High Court in James Noel Anthony Hobbs (supra), wherein the Court held that if the Will names several executors and says nothing more, then by the reading of Section 224 of the ISA, one or more of them may apply for a Probate. It is only where the Will specifically requires that all the executors should act jointly, that Section 224 of the ISA cannot be invoked to enable some of them to apply for a Probate alone.

167. The same view was also taken by a Division Bench of this Court in H.P.S. Chawla (supra), holding as under:

contemplates that when there are several executors or administrators the power of all may, in the absence of any direction to the contrary be exercised by any one of them who have proved the Will or taken out administration.…..”

168. As far Clauses 9 and 10 of the Will are concerned, it is only in discharge of duty under Clause 10 of the subject Will, that the Executors of the Will have to act jointly. Therefore, if any clarification to the Will is required or there is any dispute in execution of the terms of the Will, that the Executors must act unanimously. Consequently, one of the Executors may act in respect of the Will, including applying for the Probate thereof, however, if any clarification is required to the terms of the Will or in execution thereof, the two Executors must act together.

169. In view of the above, it is held that the present petition, filed by only one of the Executors, is, therefore, maintainable.

170. Sections 229 and 230 of the ISA are also important in this regard, and are quoted herein below: “Section 229. Grant of administration where executor has not renounced.- When a person appointed an executor has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to accept or renounce his executorship: Provided that, when one or more of several executors have proved a will, the Court may, on the death of the survivor of those who have proved, grant letters of administration without citing those who have not proved. ***** Section 230. Form and effect of renunciation of executorship. - The renunciation may be made orally in the presence of the Judge, or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for probate of the will appointing him executor.”

171. A reading of the above provisions would show that a Letter of Administration can be granted only to an executor. It can be granted to someone else only where the executor renounces his executorship. It can also be granted to one of the executors who has proved the Will. In the present case, one of the executors has not renounced his executorship. It has been held hereinabove that one of the executors can act on behalf of the other, therefore, there is a compliance with Section 229 of the ISA in the present case.

172. As far as Mr.Oswal‟s non-joining the petition or nonappearance as a witness, thereby, raising a suspicion on the validity on the Will is concerned, I again do not find any merits.

173. The petitioner claimed that Mr.Primal Oswal has given an affidavit dated 31.12.2015 (Ex.PW1/C), stating that he has no objection to the instant Probate proceedings. While simply on this affidavit, it may be difficult to presume that Mr. Primal in fact, supports the present Probate petition or that the present petition has been filed with his consent, however, at the same time, even the Objector took no efforts to produce Mr. Primal Oswal as a witness. In law, there was no necessity on the petitioner or the Legal Representative No.1 to produce Mr.Primal Oswal as a witness in the present proceeding. Therefore, no adverse inference can be drawn on ground of non-production of Mr. Primal Oswal as a witness by the petitioner.

174. It is not for this Court to guess the reason why Mr. Primal Oswal may have stayed away from the proceedings. It could have been because he has a close family relation with the parties, and did not wish to be a part of the dispute between the family members. Whatever may be the reason for Mr.Primal Oswal to stay away from the present proceedings, his staying away will not lead to a suspicion being created on the validity of the subject Will, especially when the execution and attestation has been duly proved, and it is not alleged that he could have thrown any light on either the execution or the attestation of the subject Will.

175. Therefore, none of the above circumstances, either stand alone or in conjunction with each other, are sufficient to raise a suspicion on the subject Will.

CONCLUSION

176. From the above, it would be evident that the petitioner has not only proved the due execution and attestation of the Will, and that the Testator was in sound disposing mind at the time of the execution of the subject Will, but also has proved that there were no suspicious circumstances surrounding the subject Will. On the other hand, the sole Objector/Legal Representative No. 5 has not been able to prove any of the suspicious circumstances alleged by her.

177. In view of the above findings, the Letter of Administration for the Will dated 11.12.2004 of late Sh. Devendra Kumar Jain (Ex.PW 2/Z) is hereby granted to the petitioner, subject to payment of requisite Court Fee. The petitioner shall furnish the Administration Bond with one Surety to the satisfaction of the learned Registrar General of this Court.

178. The petition is allowed in the above terms. The pending applications are disposed of.

NAVIN CHAWLA, J MAY 27, 2025/rv/Arya/VS Click here to check corrigendum, if any