KAVITA KANWAR versus MRS. PAMELA MEHTA & ORS.

[2020] 6 S.C.R. 357

KAVITA KANWAR

MRS. PAMELA MEHTA & ORS.

(Civil Appeal No. 3688 of 2017)

MAY 19, 2020

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Will – Probate of – Will dated 20.05.2003 was executed bythe mother of the contesting parties-testatrix in presence of heryounger daughter-appellant alone – Testatrix expired on21.05.2006 and left behind two daughters and son – In the saidWill, the testatrix gave the entire share in her immovable property tothe appellant and made her the major beneficiary under the Will –Appellant filed the petition seeking probate and that was declinedboth by the Trial Court and the High Court – The Trial Court andthe High Court have concurrently found some suspiciouscircumstances which are of material bearing and which haveremained unexplained – Some of such suspicious circumstancesfounded, inter alia, are: a) non-inclusion of the only son and otherelder widowed daughter of the testatrix in the process of executionof the Will and their exclusion from the major part of the estate – b)the manner of writing and execution of Will with technical and legalwords – c) there was no clarity about the construction of the propertyto be carried out by the appellant – d) there were contradictions inthe statements of the witnesses and the appellant – On appeal, held:The unexplained unequal distribution of the property is confoundedby two major factors related with making of the Will in question:one, the active role played by the appellant in the process andsecond, the virtual exclusion of the other children of testatrix in theprocess –The testatrix was living on the ground floor of the estate/immovable property in question and her elder widowed daughter-respondent no.1 was living at the first floor – There was no reasonthat in normal and ordinary course, the testatrix would not haveincluded her elder widowed daughter in execution of the Will inquestion, particularly when her elder widowed daughter was alsotaking care of her – The provision of construction of the propertyin the Will is inexecutable and unenforceable and elder widowed

Adaughter is not likely to get anything – There is also no evidence ofstrained relationship between testatrix and her son – As far asattesting witnesses are concerned, the appellant asserted in hertestimony that the testatrix discussed the contents of the Will withthe attesting witnesses but both the witnesses consistently maintainedthat the contents were not discussed with them – Further, there wasBalso dispute regarding number of pages of Will and vacillating standof the appellant in that regard – As per s.81 of the Succession Act,if there is an ambiguity or deficiency on the face of Will, no extrinsicevidence as to the intentions of the testator shall be admitted – Theappellant failed to clear the suspicious circumstances – Thus, theCcumulative effect of these suspicious circumstances is that it cannotbe said that the testatrix was aware of and understood the meaning,purport and effect of the contents of the Will in question – The Willin question cannot be probated – The reasons and material findingsof the Trial Court and the High Court affirmed.DWill – Probate proceedings – Non-filing of written statement– Held: By the very nature and consequence of probate proceeding,filing or non-filing of written statement or objections by any partypales into insignificance and is of no effect – The probate proceedingis not merely inter-partes proceeding but leads to judgment in remand, therefore, even when no one contests, it does not ipso factoElead to grant of probate – The probate is granted only on proof ofWill as also on removal of suspicious circumstances, if there be any,to the final satisfaction of the conscience of the Court.

Dismissing the appeal, the Court

FHELD: 1. There has not been any question on thetestamentary capacity and soundness of mind of the testatrix;and her handwriting as also signatures on the Will in questionare also beyond controversy. However, the Trial Court and theHigh Court have concurrently found some such suspiciouscircumstances which are of material bearing and which haveGremained unexplained. Put in nutshell, the unexplainedsuspicious circumstances so found are: (a) that appellant, themajor beneficiary, played an active role in execution of the Willin question and attempted to conceal this fact before the Court;(b) that there had not been any plausible reason for non-inclusionHof the only son and other daughter of the testatrix in the process

of execution of the Will and for excluding them from the majorpart of the estate in question; (c) that there was no clarity aboutthe construction supposed to be carried out by the appellant; (d)that the manner of writing and execution of the Will with technicaland legal words was highly doubtful; and (e) that the attestingwitnesses were unreliable and there were contradictionsin the statements of the witnesses. Because of these majorcircumstances coupled with various supplemental factors, theTrial Court and the High Court felt dissatisfied on the rootquestion as to whether the testatrix duly executed the Will inquestion after understanding its contents. [Para 27][422-B-E]

2. There is no doubt that any of the factors taken intoaccount by the Trial Court and the High Court, by itself andstanding alone, cannot operate against the validity of thepropounded Will. That is to say that, the Will in question cannotbe viewed with suspicion only because the appellant had playedan active role in execution thereof though she is the majorbeneficiary; or only because the respondents were not includedin the process of execution of the Will; or only because of unequaldistribution of assets; or only because there is want of clarityabout the construction to be carried out by the appellant; or onlybecause one of the attesting witnesses being acquaintance of theappellant; or only because there is no evidence as to who draftedthe printed part of the Will and the note for writing the openingand concluding passages by the testatrix in her own hand; oronly because there is some discrepancy in the oral evidence ledby the appellant; or only because of any other factor taken intoaccount by the Courts or relied upon by the respondents. Therelevant consideration would be about the quality and nature ofeach of these factors and then, the cumulative effect and impactof all of them upon making of the Will with free agency of thetestatrix. In other words, an individual factor may not be decisivebut, if after taking all the factors together, conscience of the Courtis not satisfied that the Will in question truly represents the lastwish and propositions of the testator, the Will cannot get theapproval of the Court; and, other way round, if on holistic viewof the matter, the Court feels satisfied that the documentpropounded as Will indeed signifies the last free wish and desire

Aof the testator and is duly executed in accordance with law, theWill shall not be disapproved merely for one doubtfulcircumstance here or another factor there. [Para 28][422-E-H;423-A-B]

3. The unexplained unequal distribution of the property isBconfounded by two major factors related with making of the Willin question: one, the active role played by the appellant in theprocess; and second, the virtual exclusion of the other childrenof testatrix in the process. As noticed, an active or leading partin making of the Will by the beneficiary thereunder has alwaysbeen regarded as circumstance giving rise to suspicion but,Clike any other circumstance, it could well be explained by thepropounder and/or beneficiary. In the present case, it is not indispute that out of the three children of testatrix, the appellantalone was present at the time of execution of the Will in questionon 20.05.2003. As noticed, at the relevant point of time, the

Dappellant was admittedly living away and in different locality forabout 20-22 years, whereas testatrix was residing at the groundfloor of the building and the respondent No.1 was at the firstfloor. Even if this Court leaves aside the case of the respondentNo.2 who was living in Shimla, there was no reason that in thenormal and ordinary course, the testatrix would not have includedEthe respondent No.1 in execution of the Will in question,particularly when she was purportedly making adequatearrangements towards the welfare of respondent No.1. In otherwords, if the Will in question was being made without causingany prejudice to the respondent No.1, there was no reason to

Fkeep her away from this process. Admittedly, the Will in questionwas not divulged for about three years. Therefore, the addedfeature surrounding the execution of the Will had been ofunexplained exclusion of the respondent No.1 from the process.[Para 29.3][424-G-H; 425-A-D]

G4. Apart from the above, active participation of the appellantin making of the Will in question cannot be left aside as one ofthe minor factors for the reason that the appellant indeedattempted to project face of innocence by suggesting that thetestatrix did not discuss the Will with her; that she was not awareas to who drafted the Will and where was it typed; and that sheH

came to know about the Will only on 20/21.05.2003. The appellanteven stated that she did not call the witnesses and that thetestatrix herself might have called them. The witness PW-2 hasclearly contradicted the appellant by deposing that on 18.05.2003,it was the appellant who invited him to her mother’s place. Thus,the appellant, by her conduct of attempting to avoid the fact thatshe was aware of making of Will, at least two days before itsexecution, has only strengthened the suspicion arising becauseof her active participation in execution of the Will while keepingthe other children of the testatrix excluded from the process.[Para 29.4][425-D-F]

5. Moreover, the handwritten portions carry such formaland legal expressions like “testament” and “set and subscribedmy hand”, which are the tools of the language employed by aperson who is conversant with legal format and requirements forexecution of such document; and, ordinarily, layperson likethe testatrix is not expected to be conversant with them. Thisset of suspicious circumstances concerning the process ofexecution of the document in question reaches to impenetrablefinale by another major part of contradictions in oral evidence.The appellant asserted in her testimony that the testatrixdiscussed the contents of the Will with the attesting witnessesbut both of them (PW-2 and PW-3) consistently maintained thatthe contents were not discussed with them. Thus, the appellanthas failed to clear the doubts as to whether what is found writtenin the document in question (both by hand and in print) carry andconvey the last wish of the testatrix. [Paras 29.5.3 and 29.5.4][426-F-H; 427-A-B]6. Going yet further, when the core contents of thedocument in question are examined, what this Court finds isanother load of several unclear doubts and variety of uncertainties.As per Section 81 of the Succession Act, if there is an ambiguityor deficiency on the face of Will, no extrinsic evidence as to theintentions of the testator shall be admitted. Thus, everythingrelated with the true intention of testatrix in the present case isto be gathered from the contents of the Will in question itself.[Para 30][427-C]

A7. In the ultimate analysis, this Court is satisfied that theWill in question is surrounded by various suspiciouscircumstances which are material in nature and which have goneunexplained. The cumulative effect of these suspiciouscircumstances is that it cannot be said that the testatrix was awareof and understood the meaning, purport and effect of the contentsBof the Will in question. The appellant, while seeking probate, hasnot only failed to remove and clear the aforesaid suspiciouscircumstances but has even contributed her own part in lendingmore weight to each and every suspicious circumstance. The Willin question cannot be probated from any standpoint. [ParaC31][429-E-F]

8. There remains yet another, and perhaps the mostconfounding part of the matter, which leaves nothing to doubtthat the prayer for probate of the Will in question could only bedeclined. It is the curious case of alleged third page of the Will inDquestion and the vacillating stand of the appellant in that regard.[Para 33][430-A-B]

9. In the impugned judgment, the High Court noticed sucha stand of the appellant, seeking to rely on the very same disputedthird page of the Will and observed that this third page was neverEproduced by the appellant; rather when the respondent No. 2sought its production, the appellant denied the same. The HighCourt also observed that the said third page of the Will was neverproved before the Trial Court; and even if it was assumed to beexisting, the suspicious circumstances were not dispelled.[Para 34.2][435-D]F

10. Hence, to cap all the suspicious circumstances, theaforesaid equivocal stand of the appellant, as regards the thirdpage of the Will and her assertion of having acted in accordancewith the “directions” in the said third page of the Will, effectivelyknocks the entire case of the appellant down to the bottom. TheGsuspicions arising because of the facts and factors noticedhereinbefore, including the unnatural exclusion of therespondents from estate; uncertain and rather inexecutablestipulation about construction by the appellant for the purpose ofthe respondent No.1; active role played by the appellant inHexecution of the Will and yet seeking to avoid the factum of her

role by incomplete and vague statements; and the witnesseshaving contradicted the appellant on material particulars etc., havenot only gone unexplained but are confounded beyond repair withsuch vacillating stand of the appellant regarding the said thirdpage of the Will of the testatrix. [Para 36][437-A-C]

11. There are enough and cogent reasons to affirm thematerial findings of the Trial Court and the High Court that itcannot be said that the testatrix executed and signed thedocument in question as her Will after having understood themeaning, effect and purport of the contents. [Para 37][437-E-F]

H. Venkatachala Iyengar v. B.N. Thimmajamma AIR1959 SC 443 : [1959] Suppl. SCR 426; Rani PurnimaDebi v. Kumar Khagendra Narayan Deb [1962] 3 SCR195; Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors.(1977) 1 SCC 369 : [1977] 1 SCR 925; Shivakumar &Ors. v. Sharanabasppa & Ors. C.A.No.6076 of 2009decided on 24.04.2020 by the Supreme Court of India;Balraj Taneja and Anr. v. Sunil Madan and Anr. (1999)8 SCC 396 : [1999] 2 Suppl. SCR 258; Leela Rajagopaland Ors. v. Kamala Menon Cocharan and Ors. (2014)15 SCC 570 : [2014] 7 SCR 697 – relied on.Chiranjilal Shrilal Goanka v. Jasjit Singh (1993) 2 SCC507 : [1993] 2 SCR 454; Uma Devi Nambiar and Ors.v.T.C. Sidhan (2004) 2 SCC 321 : [2003] 6 Suppl. SCR637; Indu Bala Bose v. Manindra Chandra Bose (1982)1 SCC 20 : [1982] 1 SCR 1188; Surendra Pal v. Dr.Saraswati Arora (1974) 2 SCC 600 : [1975] 1 SCR687; Babu Singh and Ors. v. Ram Sahai @ Ram Singh: AIR 2008 SC 2485 : [2008] 7 SCR 250; Gurdial Kaurand Ors. v. Kartar Kaur and Ors.: [1998] 2 SCR 486;P.P.K. Gopalan Nambiar v. P.P.K. BalakrishnanNambiar and Ors.: AIR 1995 SC 1852 : [1995] 2 SCR585; Benga Behera and Anr. v. Braja Kisore Nandaand Ors.: (2007) 9 SCC 728 : [2007] 6 SCR 853; B.Venkatamuni v. C.J. Ayodhya Ram Singh and Ors.(2006) 13 SCC 449 : [2006] 7 Suppl. SCR 787; J.Mathew and Ors. v. Leela Joseph (2007) 5 MLJ 740;Bachhaj Nahar v. Nilima Mandal and Anr. (2008) 17

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3688of 2017.

From the Judgment and Order dated 27.06.2014 of the High Courtof Delhi at New Delhi in FAO No. 36 of 2010.

AKamini Jaiswal, Abhimanue Shrestha, Mrs. Rani Mishra andJatinerpal Singh, Advs. for the Appellant.

Arjun Harkauli, Prateek Garg, Ms. Aarzoo Khurana, ProsenjeetBanerjee, Ms. Nidhi Mohan Parashan, Ms. Shreya Singhal, Mr. PratyakshSharma, Ms. Prachi Dutta and Sarvesh Singh, Advs. for the Respondents.

BThe Judgment of the Court was delivered by

DINESH MAHESHWARI, J.

INTRODUCTION WITH BRIEF OUTLINE

1. This appeal by special leave is directed against the judgmentCand order dated 27.06.2014 in FAO No. 36 of 2010, whereby the HighCourt of Delhi at New Delhi has dismissed the appeal preferred by thepresent appellant and has affirmed the judgment and order dated23.11.2009 as passed by the Additional District Judge, West District, TisHazari Courts, Delhi in Probate Case No. 465 of 2006, resulting in rejectionDof the appellant’s prayer for grant of probate in relation to the Will dated20.05.2003, said to have been executed by the mother of the contestingparties[1].

2. The prayer of the appellant for grant of probate in relation tothe Will in question has been declined concurrently by the Trial Courtand by the High Court essentially after finding several unexplainedEsuspicious circumstances surrounding the Will in question. Beingaggrieved, the petitioner-appellant, who was appointed as the executorof the Will in question and who was, admittedly, the major beneficiarythereunder, has preferred this appeal while maintaining that execution ofWill by the testatrix with due compliance of all the requirements of lawFhas been clearly established on record and there has not been any suchsuspicious circumstance which might operate against the genuinenessof the Will in question.

3. Therefore, essentially the point for determination in this appealis as to whether the Trial Court and the High Court were justified inGdeclining to grant probate in relation to the Will dated 20.05.2003 asprayed for.

1 Hereinafter also referred to as ‘the contested Will’ or ‘the Will in question’ or theH‘document in question’.

THE PARTIES AND THE WITNESSES

4. For comprehension of the subject-matter and for effectivedetermination of the questions raised in this appeal, we may take note ofthe principal parties and the witnesses involved in the matter with theirrespective roles as infra:

4.1.The testatrix:

Smt. Amarjeet Mamik wife of Lt. Col. (Rtd.) D. S. Mamik.

Her husband Lt. Col. (Rtd.) D. S. Mamik had expired on20.10.2002. The testatrix herself expired on 21.05.2006,leaving behind two daughters and one son, who are thecontesting parties herein.

4.2.The appellant: Smt. Kavita Kanwar

She is the younger daughter of the testatrix. She is shownas the executor of the Will in question and she is the majorbeneficiary thereunder, though with certain conditions. Shehad filed the petition seeking probate that has been declinedby the Trial Court and the High Court.

4.3.Respondent No. 1: Smt. Pamela Mehta[2]

She is the elder and widowed daughter of the testatrix. Theconditions stated in the contested Will are purportedly aimedat making provision for her residence. Initially, she did notfile the written statement of contest but at the later stage ofproceedings and during the evidence of the appellant, sheattempted to file her written statement. However, the prayerso made by her was declined by the Trial Court.Nevertheless, she has continuously contested the matter,as shall be noticed hereafter.

4.4.Respondent No. 2: Col. (Rtd.) Prithiviraj Mamik[3]

2 The respondent No. 1 of the present appeal was on record as respondent No. 2 in theTrial Court and High Court. Therefore, reference to her in the impugned judgments andother proceedings shall appear with description as ‘respondent No. 2’. However, forcontinuity of expressions in this judgment, she is referred to as ‘the respondent No. 1’with contextual clarification wherever required.

3 Similar to FN 2 ibid., the respondent No. 2 of the present appeal was on record asrespondent No. 3 in the Trial Court and High Court. Therefore, in the impugnedjudgments and other proceedings he is described as ‘respondent No. 3’. However, forcontinuity of expressions in this judgment, he is referred to as ‘the respondent No. 2’with contextual clarification wherever required.

AHe is the son of the testatrix. By way of bequeath in theWill in question, he has been given ‘credit balance’ lying inthe bank accounts of the testatrix but with clarification thathe shall not inherit any portion of the immovable assets oftestatrix. He had filed the written statement and hasconsistently contested the claim for probate of the Will inBquestion.

4.5.The attesting witnesses:

PW-2: Shri. Urvinder Singh Kohli, who is said to be friendof the appellant and his daughter got married to the son ofCa cousin of the appellant; and PW-3: Major General ManjitAhluwalia, who is son of the sister of testatrix.

THE IMMOVABLE PROPERTY INVOLVED: ANNALSAND DESCRIPTION

5. We may also notice at the outset that the immovable property,Da part whereof forms the subject of bequeath and which is the majorbone of contention in this case, has its own chronicle of different transfersas per the desire of its original owner, father of the contesting parties.For comprehension of the relevant factual aspects as also salient featuresof this case, it is equally necessary to take note of the description ofEimmovable property in question as also the past dealings in relation thereto.

5.1. The property in question is identified as bearing numberD-179, Defence Colony, New Delhi admeasuring 325 square yards andcomprising of building having ground floor, first floor, terrace and annexeblock of garage and servant quarter. The whole property originallybelonged to Lt. Col. (Rtd.) D. S. Mamik, father of the contesting partiesFwho, in his lifetime, gifted the ground floor of this property to the appellantby way of registered Gift Deed dated 25.01.2001; and thereafter, hebequeathed the remaining portion/s, that is, the first floor, terrace andthe annexe block of garage and servant quarter in favour of his wifeSmt. Amarjeet Mamik through registered Will dated 14.02.2001. Lt.GCol. (Rtd.) D. S. Mamik expired on 20.10.2002. Hence, after his demise,Smt. Amarjeet Mamik, mother of the contesting parties, became ownerof the first floor and other portions of the said property except the groundfloor.

5.2. It is also noteworthy that at the time of execution of theHcontested Will dated 20.05.2003, the testatrix Smt. Amarjeet Mamik was

residing at the ground floor of this property (which had otherwise beengifted to the appellant by her father). The first floor of this property(which had otherwise been bequeathed to the testatrix by her husband)has remained in occupation of respondent No. 1, the widowed daughterof the testatrix.

THE WILL IN QUESTION

6. The contested Will dated 20.05.2003 has been placed on recordas Ex. PW1/H. vast variety of features related with this Will form thesubject of dispute in this case. The Trial Court and the High Court havealso analysed and taken into account several of the suspiciouscircumstances surrounding this Will and the long length of arguments ofthe learned counsel for the contesting parties in this appeal have alsorevolved around this Will. Having regard to the questions involved, itwould be apposite to take note of the features and attributes of thecontested Will to appreciate the stand of the contesting parties as alsothe findings in the impugned judgments.

6.1. The contested Will is drawn up in two pages. It is partlyholograph document in the manner that its opening and concludingpassages/clauses are handwritten whereas the other paragraphs/clausesare of electronic print. This Will is said to have been executed on20.05.2003 by Smt. Amarjeet Mamik while residing on the ground floorof the property in question at D-179, Defence Colony, New Delhi in thepresence of the attesting witnesses and the appellant.

7. The Will in question reads as under: -

“WILL

I Amarjit Mamik aged 77 years w/o Lt. Col. (Retd) D.S.MAMIK r/o Ground floor D. 179, Defence Colony New Dlhi– 110024 c/o hereby make This my will and testament onThis 20 day of May 2003 at New Delhi.

1. WHEREAS I was married to Lt. Col. (Rtd.) D.S. Mamik fromwhich union the following children were born:

1. Mrs. Pamela Mehta- Daughter, aged 60 years

2. Col. (Rtd.) Prithivijit Mamik - Son, aged 57 years

3. Mrs. Kavita Kanwar- Daughter, aged 50 years

A2. AND WHEREAS my said husband was the owner of the saidbuilding bearing No. D-179, Defence Colony, New Delhi –110024, constructed on plot of land admeasuring 325 sq. yds.and comprising of ground floor, first floor, terrace thereonand the annexe block of garage and servant quarters thereon.

B3. AND WHEREAS during his life time my said husband hadexecuted duly registered Gift Deed dated 25.1.2001 in respectof the ground floor of the said building in favour of myaforementioned youngest daughter Mrs. Kavita Kanwar whohas after the execution of the said Gift Deed granted licenceto use the same floor for my residential purposes out of naturalClove and affection.

4. AND WHEREAS my said husband has vide Will dated14.2.2001, validly executed and duly registered, bequeathed tome the first floor, the terrace thereon and all other portions ofthe said building, hereinafter referred to as the property, saveDand except the said ground floor of the same building.

I am in my full senses and disposing mind and I fully understandwhat is right and wrong. I am on my own accord voluntary, withoutany force, pressure, coercion or influence of any kind am makingthis Will in order to direct as to the manner of the inheritance ofEmy aforementioned assets upon my demise. I hereby andhereunder revoke any wills or codicils that I may have made inthe past.

1.I hereby give, devise and bequeath to my youngest daughterthe said Mrs. Kavita Kanwar my entire share in theFaforementioned immovable property, namely the first floorand the terrace including all other portions, save and exceptthe ground floor with specific directions that my said daughterMrs. Kavita Kanwar will carry out either of the 2 options asdeemed proper by her, namely

G(a) construct on the terrace of the said building such residentialfacility of such covered area as is permissible under theMunicipal Building Bye-laws at the time of my demise andhand over possession of the same construction to my elderdaughter, namely Mrs. Pamela Mehta, who shall thereafterHacquire sole exclusive title to the said portion with the terrace

rights thereon continuing to vest in favour of the said Mrs.Kavita Kanwar,

(b) demolish the said building and carry out such newconstruction as is permissible under the Municipal BuildingBye-laws and be the sole exclusive owner of the entire buildingthus constructed, save and except such constructed residentialportion on the highest floor of such building, which portionshall vest solely and exclusively in favour of my said elderdaughter Mrs. Pamela Mehta, while the terrace rights thereonshall continue to vest in favour of my said daughter Mrs.Kavita Kanwar.

2. I also direct that in the event of my acquiring any further movableor immovable assets hereinafter or any other assets that I mayhave forgotten to mention in the present Will the same shall devolveupon my daughter Mrs. Kavita Kanwar.

3. I hereby give, devise and bequeath to my son, Col. PrithivijitMamik, the credit balance lying in my Bank Accounts. I however,clarify that my said son shall not inherit any portion of myaforementioned immovable assets.

4. I hereby appoint my said daughter Mrs. Kavita Kanwar as theExecutor of my Will.

In witness whereof, I Amarjit Mamik have set and subscribedmy hand to this my last will as also to each of the 2 pages thatcomprise it having understood the contents thereof andendorsing thereby and giving my approval to the bequest madetherein.

I fully endorse the manner in which my assets shall devolveas stated hereinabove in my will made out in 2 pages. Eachof which page has been signed by me.

Witness No. 1:(Sd/-)Maj Gen Manjit AhluwaliaD-34 Defence Colony20 May 2003

Witness No. 2:

(Sd/-) 20/5/03 Urvinder S. Kohli

S/o S. Navinder S. Kohli 227 Jor Bagh N. Delhi”

(Note: The bold italicised portions are in the handwriting of thetestatrix whereas unbold italicised portions are in the handwritingCof the respective witnesses. All other contents are of electronicprint)

SUMMARY OF PLEADINGS, ISSUES AND EVIDENCEAS ALSO THE RELEVANT PART OF PROCEEDINGS IN THETRIAL COURT

8. Having taken note of the particulars of the parties and theproperty involved as also the contents of the Will in question, we maynow summarise the pleadings of the parties, the issues framed by theTrial Court, the material aspects of evidence led by the parties and therelevant part of the proceedings in the Trial Court, which have bearingEon the questions involved herein.

8.1. Briefly put, the petition leading to this appeal was filed by theappellant on 06.11.2006 in the Court of District Judge at Delhi underSection 276 of the Indian Succession Act, 1925[4] for grant of probate ofthe Will in question, said to have been executed by her mother Smt.FAmarjeet Mamik while arraying the State (N.C.T., Delhi) as the partyrespondent. Thereafter, by filing amended memo of parties, the presentrespondent Nos. 1 and 2 were arrayed as respondent Nos. 2 and 3respectively. The appellant stated the facts relating to the children of thetestatrix as also the said gift of the ground floor made by the father inher favour and then, asserted in the petition that by the Will in question,Gthe testatrix had bequeathed the first floor and other portions except theground floor of the said property at No. D-179, Defence Colony, NewDelhi in her favour with directions to carry out one of the two options,i.e., either to construct on the terrace of the first floor of the said property

4 Hereinafter also referred to as ‘the Succession Act’.

or to demolish the said building and to re-construct and give the highestfloor of the said building to Mrs. Pamela Mehta (other daughter oftestatrix) while retaining the terrace rights thereon; and had bequeathedthe balance in her savings bank account maintained with Central Bankof India in favour of her son Col. (Rtd.) Prithivijit Mamik. While statingthat the Will in question was duly executed in the presence of the aforesaidtwo witnesses and that the testatrix expired on 21.05.2006, the appellantasserted that she was the executor and beneficiary of the Will in questionand was entitled to seek its probate.

8.2. For their relevance, we may usefully take note of the materialcontents of the said petition as also those of Schedule and Schedule Battached to the petition, giving out respectively the particulars of thenatural heirs of the deceased Smt. Amarjeet Mamik and list of assetsof the deceased as under:-

“ ******

4.That the “WILL” dated 20.05.2003 was duly executed bySmt. Amarjeet Mamik in the presence of two witnessesnamely Major Gen. Manjit Ahluwalia r/o D-34, DefenceColony, New Delhi and Sh. Urvinder S.Kohli s/o S.NarinderS.Kohli r/o 227 Jor Bagh, New Delhi-110003.

5.That the deceased was the owner of first floor, the terracethereon and all other portions of premises no. D-179, DefenceColony, New Delhi-110024, save and except the ground floorof the said building, as mentioned in the will and the saidproperty, is likely to come to the hands of the petitioner andher sister namely Mrs. Pamela Mehta as per the “WILL”.

6.That the husband of the deceased was the owner of propertybearing no. D-179, Defence Colony, New Delhi-110024constructed on plot of land measuring 325 square yardsand comprising of ground floor, first floor, terrace thereonand an annexe block of garage and servant quarters thereon.

7.That during his lifetime the husband of the deceased hadexecuted duly registered gift deed dated 25.01.2001 inrespect of the ground floor of the said building in favour ofhis youngest daughter i.e. Smt. Kavita Kanwar.

A8.That the husband of the deceased vide ‘Registered Will’ dated14.02.2001 bequeathed to the deceased the first floor, theterrace thereon and all other portions of the said building tothe deceased, save and except the ground floor.

9.That Smt. Amarjeet Mamik died on 21.05.2006 at Delhi withinBthe jurisdiction of this Court.

10. That the deceased Smt. Amarjeet Mamik was Hindu byreligion and she left behind, besides the petitioner the followingrelatives/legal heirs :

(i) Mrs. Pamela MehtaDaughterC(ii) Col. (Rtd.) Prithvijit MamikSon

The complete addresses of the above heirs are given in theannexures marked as schedule ‘A’ attached with this petition.Except the above legal representatives there is no legal heirof the first class as mentioned in the Hindu Succession Act.

11. That the petitioner is one of the beneficiaries of the “WILL”dated 20.05.2003 and the petitioner is also the executor ofthe said “WILL”. The immoveable property which is likelyto come to the hands of the petitioner is having the worth ofabout Rs. 18 Lakhs.

12. That the assets which are likely to come in the hands of thepetitioner are the first floor and other portions of the propertyno. D-179, Defence Colony, New Delhi-110024 save andexcept the ground floor of the building and to carry out thetwo options of constructing either on the terrace of the firstFfloor of the said building or to demolish the said building andto re-construct and give highest floor of the said building toMrs. Pamela Mehta and retaining the terrace rights there on.

13. That the balance in the Savings Bank account No. 1001020597maintained with the Central Bank of India, Defence Colony,GNew Delhi as mentioned in the Schedule-B attached to thepetition will go to Col. (Rtd.) Prithivijit Mamik and the petitionerdoes not claim the same.

SCHEDULE

Name and Addresses of the L.Rs of the deceased Smt.

IMMOVEABLE PROPERTY:

First floor, the terrace thereon and all other portions of premisesno. D-179, Defence Colony, New Delhi-110024, save and exceptthe ground floor of the said building.

MOVEABLE ASSETS:

1.Balance in Savings Account No. 1001020597

maintained with Central Bank of India,

Defence Colony, New Delhi. Rs. 577389.00"*********”

9. The said petition seeking probate was eventually transferred tothe Court of Additional District Judge, Delhi for consideration. Afterrequisite publication and due notice, the respondents put in appearancebut, on 18.04.2007, it was given out on behalf of the present respondentNo. 1 that she did not wish to file objections to the petition. However, theobjections with documents were indeed filed on behalf of the presentrespondent No. 2, who refuted the claim of the appellant and contended,inter alia, that the Will in question was forged and fabricated, where the

Aappellant was the major beneficiary as also the executor; that there wasno reason for exclusion of the respondents and grandchildren from thelegacy; and that the property in question being an ancestral property,belongs to all the legal heirs of late Shri D.S. Mamik. The replyingrespondent maintained that there existed no dispute between testatrixand himself and there was no reason for the mother to have excludedBhim from the Will. He also contended that the property bequeathed infavour of the appellant was worth crores of rupees and hence, it wasimpossible to comprehend that his mother had left him merely sum ofRs. 5,77,389/- when the relations between him and his mother werecordial.C10. The Trial Court framed the following issues for determinationof the questions involved in the matter: -

“1. Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik isproper and valid? OPP

D2. Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik isforged and fabricated? OPR-3

3. Whether the petitioner is entitled to the grant of Probate/Letterof Administration in respect of Will dated 20-5-2003 of Smt.Amarjeet Mamik? OPP

E4. Relief”

11. In evidence, the appellant examined herself as PW-1; and thetwo attesting witnesses of the contested Will, Shri Urvinder Singh Kohliand Major General Manjit Ahluwalia as PW-2 and PW-3 respectively.Shri Nikhil Kanwar, son of the appellant, was also examined as PW-4.FIn documentary evidence, the Will in question was marked as Ex.PW1/H.

11.1. It had been the consistent case of the appellant that shehad no prior knowledge that the Will was being executed on the givenday and that it was the testatrix who invited the appellant to her residence.GThe appellant asserted in her evidence that only after reaching hermother’s house on the given day, it came to her knowledge that hermother was executing Will. She further stated that she was not awareof the contents of the Will. It had also been the assertion of the appellantthat her parents had special love and affection for her and that had beenthe reason for them having gifted and bequeathed the said property toH

her only. The appellant also stated in the cross-examination: (i) that shedid not know the educational qualification of the testatrix but she (testatrix)knew how to read and write in English; (ii) that she and the testatrixwere not residing together for the last 20-22 years; (iii) that the testatrixneither discussed the contents of the Will with her nor mentioned as towho had drawn and typed the Will in question; (iv) that she came toknow about the existence of the Will on 20-21 May, 2003; (v) that hermother had not called respondent Nos. 1 and 2 on the day of executionof the Will; (vi) that respondent No. 1 was living on the floor above thetestatrix and was looking after the testatrix, who was suffering fromcancer; (vii) that the testatrix had called the attesting witnesses; (viii)that she did not know when the testatrix discussed the Will with therespondents; (ix) that the testatrix had discussed the contents of the Willwith the attesting witnesses (x) that she remembered the testatrix writingsomething but was not sure whether it was on the Will or somethingelse[5]; and (xi) that the relations of the testatrix and the respondent No. 2were strained.

11.2. PW-2 and PW-3, the attesting witnesses, both specificallydeposed that on their arrival at the house of Smt. Amarjeet Mamik, theyfound that the appellant was already present there; that the testatrixwrote something on the Will in their presence before signing it; and thatthey were unaware of the contents of the Will as the same was notdiscussed with them. PW-2 also maintained that on 18.05.2003, theappellant had called him to the house of her mother on 20.05.2003. Onthe other hand, PW-3 deposed that it was the testatrix who invited himto her house that day; that he was having good relations with the appellantand the respondents; that the testatrix was having good relations withrespondent No. 2 and also that when Smt. Amarjeet Mamik wrotesomething on the Will, she copied it from draft which she had with her.

12. In opposition, the contesting respondents deposed as R2W-1and R3W-1 respectively.Shri Ram Gopal Meena from the Post Office,Defence Colony was examined as R3W-2; Shri S.P. Sharma from StateBank of India as R3W-3; Shri R.S. Negi from Defence Colony AssociationClub as R3W-4; and Shri S.P. Khamra from Central Bank of India wasexamined as R3W-5. Several documents produced by the respondentslike family photographs, birthday card sent by testatrix to respondent

5 Though in the affidavit-in-evidence, the appellant had mentioned that her mother hadwritten the introduction portion as also the concluding portion on the Will.

ANo. 2 etc. shall also be referred to at the appropriate juncture, to theextent of relevancy.

12.1. The respondent No. 1 in her evidence, inter alia, deposedthat their mother was not even 10[th] standard pass and that she washaving cordial relations with herself as also with the respondent No. 2.

B12.2. The respondent No. 2 in his evidence, inter alia, deposedthat he was having good relations with his mother; and, as he was servingin Indian Army, the mother would talk to him over the phone and wouldeven send letters and birthday card wishing him all the happiness.

13. Before proceeding further, one of the peculiar aspects of theCmatter, which carry its own bearing on the relevant questions andemanates from the record of proceedings of the Trial Court, may benoticed as infra.

13.1. It appears that at the initial stage of proceedings in the TrialCourt, the relations of the appellant and the respondent No. 1 (who wasDrespondent No. 2 in the Trial Court) had not gone into any discord. Asnoticed, the present respondent No. 1 stated before the Trial Court on18.04.2007 that she did not wish to file any objections to the petition.However, it appears that during the course of evidence of the appellant,differences and disputes spurted between the appellant and theErespondent No. 1 and the appellant filed separate civil suit for injunctionagainst the respondent No. 1. In sequel to this new position of conflict ofinterests, the respondent No. 1 attempted to put forward direct contestof the petition seeking probate and, on 24.03.2008, moved an applicationunder Section 151 of the Code of Civil Procedure (‘CPC’) before theTrial Court, seeking opportunity of further cross-examination of theFappellant. In this application, the respondent No. 1, inter alia, raised aplea about the alleged third page of the Will in question. The applicationso moved was rejected by the Trial Court on 25.03.2008 and, as regardsthe point concerning the alleged third page of the Will, the Court observedas under:

G“25.03.2008

Point No. 2:From the point No. 2, it appears that respondent No.2 now is raising totally different and new stand regarding the 3[rd]page of the Will. She has not produced the original or copy of theH

alleged 3[rd] page along with this application. The story of this 3[rd]page has come on record first time through this application whichcannot be believed when nothing in this regard was asked in thecross examination of PW-1. Non filing of any objections againstthis Will despite taking opportunities prima facie leads to theinference that respondent No. 2 accepted the Will as correct. Shewas also given some portion in the property under the Will andthus kept quite without disputing Will and now is challenging thegenuineness of the Will all of sudden simply on the ground thatpetitioner has filed civil suit for injunction claiming exclusiveownership of the property.

In the probate proceedings, the question of the ownershipor title is not decided and court is only concerned with the factwhether the Will is genuine or not. Counsel for the petitioner duringarguments stated that the rights given to the respondent No. 2under the Will shall be protected. Keeping in view these abovecircumstances, I am of the view that no permission can be grantedto the respondent No. 2 to cross examine further at point No. 2mentioned in para No. 4 of the application.”

13.2. On 24.03.2008, another part of the proceedings had beenthat the Court closed the opportunity for cross-examination of some ofthe witnesses of the appellant by the respondent No. 2. After the aforesaidproceedings, an application under Order IX Rule 7 CPC was filed onbehalf of the respondent No. 2. On the other hand, an application seekingpermission to file written statement and for condonation of delay wasfiled on behalf of the respondent No. 1. In that application, the presentrespondent No. 1 again referred to the alleged third page of the Will; andsuch an assertion was again emphatically denied by the appellant whilemaintaining that the Will in question was only in two pages and therewas no third page of the Will as alleged.

13.2.1. The aforesaid two applications were dealt with by theTrial Court in its order dated 03.07.2008. While the application filed bythe respondent No. 2 was granted on costs but the application moved bythe respondent No. 1 was rejected with costs. In regard to the aspectsconcerning the alleged third page of the Will, the Trial Court, observedas under:

“In this application u/s 5 of Limitation Act, respondent no. 2 hasrelied upon alleged 3[rd] page of the Will whereas petitioner stated

Athat the Will consisted of only 2 pages and it has no 3[rd] page.Respondent No. 2 has placed on record photocopy of that alleged3[rd] page but even if this photocopy is seen and compared withoriginal Will, then prima facie it can be said that it was not partof the original Will the alleged 3[rd] page appears to be some anotherdocument and prima facia it is not certainly 3[rd] page of the Will.BOtherwise alleged 3[rd] page of the Will can not be relied uponbecause in the cross examination of PW-1 respondent no. 2 hasnot referred about it any where or confronted her with it thoughadmittedly it was in her possession since beginning.”

13.3. The respondents yet persisted with their assertion aboutCexistence of the third page of Will in question and now, the respondentNo. 2 moved an application under Order XI Rule 12 and 14 CPC seekingproduction of the same. This application was also resisted by the appellantwhile denying existence of any such third page and even with the allegationthat this third page had been fabricated by the respondents in connivanceDwith each other. The Trial Court dealt with and rejected the applicationso moved by the respondent No. 2 (who was respondent No. 3 in theTrial Court) by way of its order dated 23.08.2008, inter alia, with thefollowing observations:-

“Counsel for Respondent no. 3 during arguments read theEcross examination of the petitioner as well as the contents of thealleged third page of the Will to show that, that the movableproperties was distributed by the deceased during her life time inaccordance with the contents of the third page of the Will so itcan be said that the Will in fact consisted of three pages and nottwo pages as alleged by the petitioner, however, I am not convincedFwith this submission.

In the cross examination of the petitioner the alleged thirdpage of the Will was never put to confront her in order tosubstantiate the plea that the Will consists of three pages. Even inthe cross examination of PW-2 attesting witness of the Will noGsuggestion was given that the Will was of three pages and not oftwo pages. The Will Ex. PW-1/H is of two pages and even thehandwritten endorsement at the end of it point out that it consistedof only two pages. The alleged third page of the Will, photocopyof which was placed on record by the respondent no. 2 does notHbear any date or signatures of any attesting witnesses. The alleged

third page has already been found not part of the Will as perorder dated 3-7-2008. The respondent no. 3 in his objection hasdescribed the entire Will as forged and fabricated but now cannotbe allowed to take contradictory stand that the third page isgenuine and other two pages are forged on the ground thatadmittedly the movable property was distributed in accordancewith the alleged third page among the legal heirs.

In this case, the claim is made by the petitioner in respectof one immovable property and one bank account and no claim ismade in respect of any movable property. Even if it is presumedthat deceased during her life time distributed her personalbelongings, cash and jewellery in accordance with the third pagethen also that third page has now become useless because thedistribution of the movable assets took place during life time ofthe deceased whereas the Will has to take effect after the deathof the testatrix. Accordingly, in this case only subject matter remainsis immovable property and the bank account.

Petitioner has denied the existence of this alleged third pageand also denied having possession of the same. She has also deniedsupplying of the copies of this alleged third page to the respondentsat the time of service of the petition. The reply is supported by anaffidavit of the petitioner, so in such situation also no direction canbe given to the petitioner to produce the original of alleged thirdpage of the Will which is being relied upon by the respondent no.3 now. Petitioner infact is saying that this third page has beenfabricated by the respondents in connivance with each other.

Accordingly, I find no merits in the application of respondentno. 3 especially when in the cross examination of PW-1 and PW-2 no such third page was put for confrontation and relying uponthis alleged third page now is contradictory from the contents ofthe objections filed to the petition. Application is thus, dismissedwith cost of Rs. 1000/- to be paid to the petitioner.”

14. Hereinabove, we have expansively recounted the part of theproceedings in the Trial Court concerning the alleged third page of theWill. As could be readily noticed, while the contesting respondents, oneway or the other, kept on insisting that there had been third page of theWill but, per contra, existence of any such third page of the Will in

Aquestion was categorically denied by the appellant; rather the appellantalleged that the said third page had been fabricated by the respondentsin connivance with each other. The Trial Court also accepted thesubmission of the appellant that no such third page existed, particularlyafter noticing that the appellant was never confronted with any suchthird page of the Will. The Trial Court even observed that distribution ofBmovable assets of testatrix was complete during her lifetime and theonly subject-matter remaining was the immovable property and the bankaccount. The relevance of these aspects shall appear in the later part ofthis judgment, when we shall be dealing with the effect of differentstand taken by appellant in the High Court.

CFINDINGS OF THE TRIAL COURT

15. Having glanced through the pleadings and evidence of theparties, having taken note of the contents and frame of the Will in question,and having also taken note of the relevant parts of proceedings beforethe Trial Court, we may look at the findings of the Trial Court in itsDjudgment dated 23.11.2009, particularly the reasons that weighed with itwhile declining the prayer for probate of the Will in question.

15.1. As regards the objection of respondent No. 2 that the propertyin question was an ancestral property, the Trial Court referred to thedecision of this Court in Chiranjilal Shrilal Goanka v. Jasjit Singh:E(1993) 2 SCC 507 and held that the said objection would not beentertained because the ‘question of right, title, share and ownershipis not to be decided in the probate proceedings’. The Trial Court alsofound that the testatrix was of sound mind at the time of execution of theWill, particularly when she was handling her own affairs including bankFaccount and property; was leading very active life till her death; andwas also attending club and driving her own car.

15.2. However, thereafter, the Trial Court took into accountvarious circumstances which appeared to be suspicious. In the first place,the Trial Court referred to the decisions in H. Venkatachala Iyengar v.GB.N. Thimmajamma: AIR 1959 SC 443, Indu Bala Bose v.Manindra Chandra Bose: (1982) 1 SCC 20 and Surendra Pal v.Dr. Saraswati Arora: (1974) 2 SCC 600 and observed thatif propounderof the Will takes an active part in the execution of the Will and receivessubstantial benefit under it, then such circumstance is generally treatedas suspicious one. As regards the facts of the case at hand, the Trial

Court found that the appellant played an active role in execution of theWill in question and at the same time, she was the major beneficiarythereunder where she was not only given the first floor but also theterrace rights and all other portions of the property in question.

15.3. Secondly, the Trial Court was of the view that the exclusionof the only son from the immovable property was also suspiciouscircumstance. The Court took into consideration the birthday card Ex.RW3/1 sent by the testatrix to respondent No. 2 and was of the viewthat the words of praise in the said card belied the suggestion that therelationship between them was strained. The Trial Court also took intoconsideration the family photographs making out that the testatrix waspresent at the second marriage of respondent No. 2 and observed thatthe said photographs were not challenged or questioned by the appellant.The Trial Court also observed that the testatrix would not have givenhim the amount in the bank account if their relations were strained.15.4. Thirdly, the Trial Court also found that the other daughterof the testatrix (the respondent No. 1 herein) virtually did not get anysubstantial share. The Trial Court was of the view that the exclusion ofrespondent No. 1 from the Will, when there was no proof of strainedrelationship of testatrix with her, made the Will unnatural and unfair; andthis was another strong suspicious circumstance to reject the Will.

15.5. Fourthly, the Trial Court did not feel satisfied about the mannerof writing and execution of the Will and observed that the testatrix hadnot completed her education and was not computer literate; that fewportions of the Will were handwritten and there were traces of pencillines beneath the handwritten portions, making out that the testatrix wasasked to write as per dictation on the particular portion; and that certainportions of the Will contained technical and legal words not known to alayperson. The Trial Court observed that the relevant facts as to howthe Will was typed and how the testatrix was made to write the particularclause in the Will in her own handwriting were not clarified and themanner of execution of Will was another suspicious circumstance.

15.6. Fifthly, the Trial Court was of the view that the attestingwitnesses were unreliable and the possibility of PW-3 being bribed wasnot ruled out as the appellant had given an amount of Rs. 25,000/- to hisdaughter. On the other hand, PW-2 admitted in his cross-examinationthat he hardly knew the testatrix.

A15.7. Sixthly, the Trial Court also took into consideration thecontradictions in the statements of the witnesses, which raised doubtsas to the genuineness to the story of the appellant. The Trial Court pointedout that as per the appellant, she had no knowledge of the execution ofthe Will prior to 20.05.2003 but as per the testimony of PW-2, it was theappellant who called him on 18.05.2003 for the purpose of attestation ofBthe Will.

15.8. Seventhly, the Trial Court also observed that there werevague recitals in the Will such as, ‘other portions of the building’,when the said property consisted only of the ground floor and first floor.

C16. While elaborately dealing with all the suspicious circumstancesconcerning the Will and unreliability of the evidence led by the appellant,the Trial Court found that the appellant had not been able to remove thesuspicions and hence, dismissed the petition.

CONCURRENCE OF THE HIGH COURTD

17. Being aggrieved by the said judgment of the Trial Court, theappellant approached the High Court in FAO No. 36 of 2010 that hasbeen considered and dismissed by the impugned judgment dated27.06.2014. Having regard to the questions involved, we may notice thereasons that prevailed with the High Court in upholding the decision ofEthe Trial Court in requisite details.

17.1. In the impugned judgment dated 27.06.2014, the High Courtin the first place took note of the relevant material on record; the suspiciouscircumstances surrounding the Will in question as indicated by the TrialCourt; and the contentions of respective parties. Thereafter, the HighCourt referred to the basic ingredients for due execution of Will as perFSection 63 of the Succession Act and Section 68 of the Indian EvidenceAct, 1872[6] and the principles exposited by this Court in the cases ofH. Venkatachala Iyengar v. B.N. Thimmajamma (supra); RaniPurnima Debi v. Kumar Khagendra Narayan Deb: (1962) 3 SCR195, Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors.: (1977) 1GSCC 369; Babu Singh and Ors. v. Ram Sahai @ Ram Singh: AIR2008 SC 2485; Gurdial Kaur and Ors. v. Kartar Kaur and Ors.:1998 SCR (2) 486; P.P.K. Gopalan Nambiar v. P.P.K. BalakrishnanNambiar and Ors.: AIR 1995 SC 1852, Benga Behera and Anr. v.Braja Kisore Nanda and Ors.: (2007) 9 SCC 728 and B.

H6 Hereinafter also referred to as ‘the Evidence Act’.

Venkatamuni v. C.J. Ayodhya Ram Singh and Ors.: (2006) 13 SCC449 as also in Division Bench decision of Madras High Court inJ. Mathew and Ors. v. Leela Joseph : (2007) 5 MLJ 740 andobserved thatas per settled law, mere proof of signatures on the Willwas not sufficient to prove its due execution; and it was the duty of theparty seeking probate to satisfy the conscience of the Court as regardsdue execution of the Will by the testator and for that matter, the Courtcan probe deeper into the matter to satisfy its conscience that the testator/testatrix had duly executed the Will after understanding its contents.The High Court, thus formulated the point for consideration as under:-

“28. The question for consideration is whether the evidence ledby the appellant i.e., propounder satisfies the conscience of thecourt that the Will in question was duly executed.”

17.2. Thereafter, the High Court took up the crucial finding ofthe Trial Court that the evidence on record did not establish that whilesigning the Will Ex. PW1/H, the testatrix understood the contents thereof.

17.2.1. In regard to this fundamental aspect as to whether thetestatrix understood the contents of the document Ex. PW1/H, the HighCourt meticulously examined the material on record and observed thatthe appellant, in her evidence, did not mention that the testatrix wasaware of the contents of the Will. The High Court further referred to thetestimony of the appellant to the effect that she was not made aware bythe testatrix as to who had drawn and typed the Will in question; that shewas made aware about the Will only on the day of its execution; that shewas not aware if testatrix had discussed the Will with respondent Nos. 1and 2; that she was not directed by the testatrix to call respondent Nos.1 and 2 on the day of execution of the Will; and that though sheremembered the testatrix writing something, but she was unsure whetherit was on the document of Will. major discrepancy was observed bythe High Court in her deposition with regard to the attesting witnesseswhere the appellant stated that the testatrix had discussed the contentsof the Will with PW-2 and PW-3 while those witnesses denied the samein their evidence. Thus, after having thoroughly examined the testimonyof the appellant, the High Court concluded that nothing was brought onrecord to show that the testatrix was aware of the contents of the Will.The High Court said,-

“30. The evidence on record in this regard is examined. Theappellant has nowhere stated in her evidence by way of affidavit

AEx.P1 that testatrix was aware of the contents of the Will Ex.PW1/H. In her cross-examination, she has stated that her motheri.e. testatrix did not discuss the contents of the Will Ex.PW1/Hwith her before drawing it nor her mother told her as to who haddrawn and typed the said Will. The appellant has further stated incross-examination that she does not know when Will Ex.PW1/HBwas got typed. She has further stated that she had come to knowabout the said Will Ex.PW1/H only on 20-21 May, 2003. Theappellant has also deposed that she does not know whether hermother i.e., testatrix had discussed the Will Ex.PW 1/H withrespondent no.2 or respondent no.3. Her mother did not ask herCto call respondent nos.2 and 3 on that day. In cross-examination,she has further stated that her mother had discussed the contentsof the Will with the witnesses i.e. PW2 and PW3 whereas PW2and PW3 in their evidence have denied the same. The appellanthas further deposed that she does not know if any professional orany deed writer was engaged for drafting/typing of the Will Ex.PWD1/H. The appellant has also deposed that on that day her motherhad written something but she does not know whether it was onthe Will or something else. From her evidence, it cannot be saidthat testatrix was aware about the contents of the Will Ex.PW1/H.”

17.2.2. The High Court also examined the evidence of attestingwitnesses PW-2 Shri Urvinder S. Kohli and PW-3 Major General ManjitAhluwalia, who deposed that the testatrix did not discuss the contents ofthe Will with them nor did they question her about the same; and thatafter they had arrived at the residence of testatrix, she went ahead to

Fwrite something more on the Will before signing it. The High Courtobserved that from their testimonies too, nothing was proved if the testatrixunderstood the contents of the document in question and said,-

“ 33. Even from the evidence of attesting witnesses i.e. PW2 andPW3 it can’t be said that testatrix had put her signatures on theGWill Ex. PW1/H after understanding its contents or that whilesigning she was aware of its contents.”

17.2.3. Proceeding further, the High Court also took note of thestatement of the respondent No. 1 that the testatrix was not even 10[th]pass; and also referred to the statement of the appellant that she wasHnot aware of the educational qualification of her mother but her mother

could read and write in the English language. The High Court referredto the fact that the testatrix was not computer literate and had no legalknowledge; and the language used in the Will showed that the same wasdrafted by lawyer. The High Court observed that no evidence was ledin as to who drafted and typed the Will Ex. PW1/H and considered thesame to be suspicious circumstance with reference to the decision ofthis Court in Smt. Jaswant Kaur (supra). The High Court also took intoaccount the feature that the document in question was partly typed andpartly handwritten with no plausible explanation for the same and foundthat the document was not prepared in one sitting. Thus, after thoroughanalysis, the High Court concluded that from the evidence led in by theappellant, it cannot be said that the testatrix had understood the typedportion or that the same was read over to her before she put her signatureson the Will. Accordingly, the High Court affirmed the findings of theTrial Court in regard to such suspicious circumstance while observingand finding as under: –

“35. …The Will Ex. PW1/H is partly typed and partly hand writteni.e. opening and closing para of the Will Ex. PW1/H. The evidenceshows that the Will Ex. PW1/H was also not prepared in onesitting. The first and last para of Will Ex. PW1/H is in thehandwriting of testatrix. The rest of the Will Ex. PW1/H is typedone. No explanation has been given in evidence as to why theWill is partly handwritten and partly typed. During arguments,learned counsel for appellant has submitted that first and last paraare handwritten so as to give more weightage to the Will in question.However, the reasoning given is not understandable. Further, noevidence is led by the appellant to show from where the Will inquestion was got typed. The first para of Will in question gives thename and other details of testatrix and last para is the closingpara of the Will in question. The typed portion gives the details ofalleged bequeath in the Will Ex. PW1/H whereby major portionhas been given to the appellant and one floor as per choice of theappellant is alleged to have been bequeathed in favour ofrespondent No. 2. Reading the evidence led by the appellant itcan’t be said that the testatrix had understood the typed portion orsame was read over to her before she had put her signatures onthe Will Ex. PW1/H. The learned ADJ has rightly held the aboveas the suspicious circumstance…..”

A17.3. The High Court thereafter examined the bequeathingcontents of the Will in question and observed that nothing was availablein the petition or evidence of the appellant as to why the major portion ofimmovable property was given to her though she was not staying withthe testatrix for about 20-22 years and it was not her case that she waslooking after the testatrix who was cancer patient. On the other sideBof the picture, the High Court noticed that the widowed daughter of thetestatrix (respondent No. 1 herein) was, at the relevant time, living onthe first floor of the house where testatrix was residing; and, as per theevidence on record, respondent No. 1 was looking after her mother andwas taking her to Army Hospital. Having thus taken note of the overallCscenario and setup, the High Court found it rather inexplicable that therespondent No. 1 was left at the mercy of the appellant; that in the Willin question, no time limit was provided as to when the appellant wouldconstruct the floors and about the nature and quality of the construction;and that respondent No. 1 shall have to be dispossessed for the purposeof the expected construction.D

17.4. The High Court also dealt with another major factorpertaining to this case that the appellant, the major beneficiary, indeedplayed an active role in execution of the Will in question; and noticedmaterial contradictions in the testimonies of appellant and her witnessPW-2. The High Court found that the appellant was unable to satisfy theEconscience of the Court in regard to such suspicious circumstance in thefollowing passages:-

“40. Reading the Will in question, it is the appellant who is themajor beneficiary of the Will. The evidence on record shows thatshe has also played an active role in the preparation of the allegedFWill. She was present when the Will in question was allegedlyexecuted. The attesting witness Urvinder S Kohli, PW-2 is verywell known to the appellant being her friend for the past 30 years.He has deposed that he had known deceased through appellantand later the appellant’s cousin’s son got married to his daughterGin the year 1994 and since 1994 he had visited testatrix only twiceor thrice on social occasions. Reading his evidence it can’t besaid that he was close to the testatrix. In these circumstances,testatrix could not have called him of her own for attesting theWill Ex.PW1/H. Though in the evidence, appellant has deposedthat her mother i.e., testatrix had called the said witnesses whereas

the witness PW2 has deposed that on 18.5.2003, he was calledby the appellant who told him to come to her mother’s house on20.5.2003 as her mother wanted to executed the Will.

41. The evidence on record shows that appellant has taken aprominent part in execution of Will Ex.PW1/H which confers onher substantial benefit worth crores of rupees. This itself is abig suspicious circumstance as has been held by Supreme Courtin Niranjan Umesh Chandra Joshi vs. Mridula Jyoti Rao: 2007 (1)AD SC 477. It has also been held by Supreme Court in SurinderPal vs. Saraswati Arora: (1974) 2 SCC 600 that where propoundertakes prominent part in the execution of Will which confers onhim substantial benefit that is itself one of the suspiciouscircumstance which he must remove by clear evidence. In thepresent case no evidence is led by appellant to satisfy theconscience of the court to clear the aforesaid suspiciouscircumstance existing at the time of making of Will Ex.PW1/H.The propounder was required to remove the doubts by clear andsatisfactory evidence.”17.5. Turning on to the respondent No. 2 (son of the testatrix), theHigh Court found that absolutely no reason was provided in the Will forexcluding him from the said immovable property and for limiting his benefitunder the Will to the balance amount in the savings bank account of thetestatrix. The High Court observed that though the appellant had deposedthat there were strained relations between the testatrix and respondentNo. 2 but, on the contrary, the witness PW-3 Major General ManjitAhluwalia, son of sister of the testatrix, as also respondent No. 1 haddeposed that their relations, in fact, were satisfactory. The High Courtagain referred to the documentary evidence as regards regular maintainingof good relations between the testatrix and her son, like those of birthdaycard and the family photographs, and observed that if at all there werestrained relations, the testatrix would not have even bequeathed anyamount to her son. Again, after thorough analysis of the evidence onrecord, the High Court found that there was no sufficient evidence ofstrained relations between the testatrix and her son to such an extentthat she would have excluded him from her immovable property. Hence,the exclusion of respondent No. 2 from bequeath was also taken to bethat of grave suspicious circumstance casting doubt on the genuinenessof the Will in question. The High Court, inter alia, observed,-

ABC

A“46. There is no evidence coming forth to explain the suspiciouscircumstance of excluding respondent no.3 from bequeath of theimmovable property. As noted above, there is no evidence thatdeceased had understood the contents of the Will Ex.PW1/Hbefore signing it. In this background, exclusion of respondent no.3is also grave suspicious circumstance which has also remainedBunexplained. The same cast doubt as to the genuineness of WillEx.PW1/H.”

17.6. Yet further, the High Court also noticed that thoughrespondent No. 1 resided only one floor above the testatrix and was alsomaintaining good relations with her, but only the appellant was called atCthe time of execution of the Will and no reason was provided for notcalling the respondent No. 1. That apart, the High Court also took noteof the fact that respondent No. 1 was made aware of the execution ofthe Will only after three years from the date of its execution. The executionof the Will in secrecy, without informing the other legal heirs, and withoutDaffording explanation for such an act, was also considered as anotherunexplained suspicious circumstance.

17.7. The High Court also referred to various contradictions inthe testimonies of the appellant and the said two attesting witnesses onthe material aspects concerning the execution of Will by testatrix,Eparticularly as to how the handwritten portion was scribed on thedocument and as regards discussion concerning the contents of thedocument; and found such contradictions to be serious in nature, creatingdoubt about the execution of Will Ex. PW1/H in accordance with law.After examining the relevant parts of evidence, the High Court observedand found as under:-F

“48. Further, there are serious contradictions in the testimony ofattesting witnesses i.e. PW2 and PW3 and that of appellant onmaterial aspects pertaining to the execution of the Will. In affidavitEx. P1 the appellant has stated that the testatrix had brought outa partly typed Will and further wrote in her own hand the openingGand closing paragraphs of the Will Ex. PW1/H. In cross-examination, she has stated that she does not know whether shehad written on the Will or something else. Sh. Urvinder S. KohliPW2 has stated that the handwritten portion on the Will Ex. PW1/H was written by the testatrix of her own. Sh. Manjit AhluwaliaHPW3 has stated in cross-examination that the testatrix was havingone draft out of which she copied something in her own handwritingon Will Ex. PW1/H. All the three witnesses have deposeddifferently as to how handwritten portion was written on Will Ex.PW1/H. There is also contradiction as regards discussion aboutthe contents of Will Ex. PW1/H by testatrix with the attestingwitnesses. The appellant has stated in her cross-examination thather mother had discussed the contents of Will with the witnesseswhereas both the attesting witnesses have denied that the contentsof Will were discussed by the testatrix. PW2 has also stated inthe cross-examination that he even did not question the testatrixon the same. There is also contradiction about the manner oftaking out of Will at the time the witnesses had reached the houseof testatrix. The attesting witness PW2 has deposed that the Willwas not produced before him when he was present with thetestatrix and appellant. According to him, when PW3 had come,only then the Will was produced. On the other hand, Sh. ManjitAhluwalia PW3 has deposed that when he had reached the houseof testatrix Will Ex. PW1/H had already been taken out by thetestatrix before he reached her house. The above contradictionsare serious in nature and create doubt about the execution ofWill Ex. PW1/H in accordance with law.”

17.8. Taking into comprehension the aforesaid observations andfindings, it is apparent that the High Court, after an independent analysisof the evidence on record, concurred with the major findings of the TrialCourt as regards various suspicious circumstances which remainedunexplained and which operated against genuineness of the documentpropounded as Will of the mother of the parties. However, that was notthe end of the matter because another doubtful factor was also analysedby the High Court as regards payment of sum of Rs. 25,000/- by theappellant to the daughter of the attesting witness PW-3 Major GeneralManjit Ahluwalia, through cheque from an account jointly maintained inthe name of testatrix and the appellant but, after the death of the testatrix.The contesting respondents claimed that the aforesaid payment wasmade in order to garner favour from the attesting witness PW-3. In thisregard, the stand of the appellant had been that such an amount waspaid not only to the daughter of PW-3 but also to the daughter ofrespondent No. 1 and to the sons of appellant as the testatrix wanted togift the said amount to them. Interestingly, in order to buttress this standof the appellant that the amount was paid to the daughter of PW-3 as

Aper the wishes of testatrix, the learned counsel for the appellant beforethe High Court referred to the alleged third page of the Will. After noticingsuch submission made on behalf of the appellant with reliance on thealleged third page of the Will, the High Court referred to the very sameproceedings of the Trial Court which we have referred in detailhereinbefore, where the respondents wanted to produce the alleged thirdBpage of the Will but the appellant denied the very existence of any suchthird page of the Will in question. The High Court found that the saidthird page of the Will was never produced before the Trial Court; andobserved that even if existing, the alleged third page of the Will does notdispel the suspicious circumstances. This part of the discussion andCobservations of the High Court, in paragraph 49 of the impugned judgment,could be usefully extracted as under: –“49. It has also come in the evidence that Rs. 25000/- was paidby the appellant to the daughter of the attesting witness MajorGeneral Manjit Ahluwalia PW3 through cheque Ex. R3W1-C fromDaccount jointly in the name of testatrix and the appellant after thedeath of testatrix. The stand of respondent No. 2 and 3 is that theaforesaid payment was made in order to get favour from theattesting witness PW3 as such his evidence is not reliable. On theother hand, the stand of the appellant is that the said amount wasnot only paid to the daughter of PW3 but was also paid to theEdaughter of respondent No. 2 and to the son of appellant as thedeceased/testatrix wanted to gift the said amount to them. Insupport of the stand, learned counsel for appellant has referred tothe alleged third stage of Will in question. It may be mentionedthat the alleged third page of the Will Ex.PW1/H is never producedFby the appellant. Rather, when the respondent No. 3 had movedan application for production of the alleged third page of the Will,appellant had denied the existence of said page. The third page ofthe Will is never proved before the learned ADJ. Even assumingthe alleged third page exists, the same does not dispel the suspiciouscircumstances as have been noted above. In these circumstances,Gthe contention of the appellant that the alleged third page of WillEx. PW1/H proves its validity has no force.”

17.9. After taking note of the aforesaid inexplicable features,unusual circumstances and unreliability of the witnesses, and finding nofault or malafide in the respondent No. 1 contesting the matter at theH

later stage, the High Court in its impugned judgment dated 27.06.2014,while concurring with the findings of the Trial Court, dismissed the appealand held that mere signature on the Will by the testatrix was not sufficientto prove that the said Will was duly executed after understanding thecontents thereof. The High Court concluded on the matter as follows:-

“51. In view of above discussion, the findings of learned ADJ thatWill Ex.PW1/H is surrounded by various suspicious circumstanceswhich has remained unexplained and the possibility of aforesaidWill not duly executed by the deceased after understanding itscontents are confirmed. No illegality or perversity is seen in thefindings given by the learned ADJ. No case is made out forinterference with the impugned judgment.”

RIVAL CONTENTIONS

The Appellant

18. Being aggrieved by the judgment so passed by the High Courtdismissing her appeal and maintaining rejection of her prayer for grantof probate, the petitioner-appellant has preferred this appeal by specialleave. Assailing the impugned judgments, learned counsel for the appellanthas strenuously contended that due execution of the Will as per therequirements of the Succession Act having been proved in accordancewith procedure prescribed by the Evidence Act; and no cogent reasonor circumstance having been established on record against thegenuineness of the contested Will, clear case for grant of probate ismade out but the Trial Court as also the High Court have proceeded toreject the prayer of the appellant on entirely baseless considerationswhile doubting the Will on the so-called suspicious circumstances, thoughthere is none.

18.1. Elaborating on her submissions, the learned counsel for theappellant has submitted that Will has to be proved like any otherdocument but, it has to satisfy the requirements ofSection 63 of theSuccession Act in the manner that for due execution, the testator has tosign or affix his mark on the Will or it has to be signed by some otherperson in the presence of testator and under his direction; and the Willhas to be attested by two or more witnesses, each of whom has seensuch signing or affixation by testator or by other person acting as per thedirections of the testator. Further to that, as per Section 68 of the EvidenceAct, at least one attesting witness has to be examined in proof of Will.

AThe learned counsel would submit that in the present case, all therequirements of Section 63 of the Succession Act are duly satisfied inthe execution of the Will in question; and the same has been duly provedwith examination of both the attesting witnesses before the Court asPW-2 and PW-3. The learned counsel has contended that the appellanthaving duly discharged her burden and nothing concrete having beenBbrought on record so as to create any legitimate suspicion, there is noreason to deny probate as prayed for.

18.2. While asserting the case of the appellant for grant of probatein relation to the Will in question, the learned counsel has, in the firstplace, questioned the standing and stance of the respondents in attemptingCto raise certain issues about the Will in question.

18.2.1. As regards respondent No. 1, learned counsel for theappellant has contended that she has no locus either to lead evidence orto doubt the validity and genuineness of the Will for the reason that shedid not file any objections before the Trial Court and as such, inevitably,Dhad accepted the execution of the Will in question as being the lasttestament of her mother. The learned counsel would submit that theapplications filed by respondent No. 1, for recall of the appellant for thepurpose of further cross-examination and for permission to file writtenstatement were rejected by the Trial Court and she did not challenge theEorders so passed against her and thereby, such orders have attainedfinality. The learned counsel has submitted, with reference to Section268 of Succession Act with Order VIII Rule 10 of CPC as also OrderXIV Rule 1 (6) read with Order XV Rule 2 CPC, that the status ofrespondent No. 1 remains to be that of defendant who is not at issuewith the plaintiff; and in the given circumstances, all the suggestionsFsought to be made on her behalf deserve no consideration. Withreference to the decision in Bachhaj Nahar v. Nilima Mandal andAnr.: (2008) 17 SCC 491, the learned counsel has submitted thatevidence led in without pleadings by the respondent No. 1 remainsinadmissible. The learned counsel has also submitted that it is for theGfirst time before this Court that new plea of fact was introduced by therespondent No. 1 in the written submissions as regards the status ofrelationship between the respondent No. 1 and her mother; and that theprovisions under Order VI Rule 7 of CPC prevent introduction of newgrounds of claim except by way of amendment. The learned counselhas emphatically argued that from the very beginning, the premise ofH

respondent No. 1 had been that she admitted the genuineness of the Willand therefore, stand contrary to the same cannot now be raised by herbefore this Court.

18.2.2. As regards respondent No. 2, learned counsel for theappellant has referred to the objections filed by him and has submittedthat most of the objections being totally baseless and untenable, wereclearly rejected by the Trial Court like those suggested as if the Will inquestion was forged and fabricated or those seeking to question thedisposing state of mind of the testatrix. The learned counsel has alsosubmitted that the respondent No. 2 went on to suggest ancestral characterof the property in question and the Trial Court has rightly rejected suchobjections too with reference to the decision in Chiranjilal (supra)because title of the property is not to be decided in probate proceeding.The learned counsel has further submitted that the suggestions by thisrespondent about his cordial relations with the testatrix have not beenestablished on record and few photographs and letters produced byhim do not establish that he was in thick of relations with the testatrix;rather, as per the evidence on record, he remained away and detachedfrom the family and he was not even aware about the ailment of thetestatrix. Thus, according to the learned counsel, even the objections ofrespondent do not make out case of any such suspicious circumstancefor which the genuineness of the Will in question may be doubted.18.3. As regards the testimonies of the two attesting witnesses,the learned counsel would submit that they have clearly proved thematerial facts relating to due execution of Will and attestation by them;and the doubts sought to be thrown upon them with reference to someminor and natural discrepancies, or their acquaintance with the appellantare of no consequence. The learned counsel has contended that the Willwas executed in the year 2003 while the testimonies of the witnesseswere recorded only in the year 2008 and therefore, minor variations ondetails as to who arrived first or what portion was written on the Willetc., do not affect the substance of their evidence.

18.4. The learned counsel has referred to various decisions likethose in H. Venkatachala Iyengar (supra), Madhukar D. Shende v.Tarabai Aba Shedage: (2002) 2 SCC 85; and Joyce Primrose Prestorv. Vera Marie Vas: (1996) 9 SCC 324 to submit that though the initialonus to prove the Will is on the propounder but once that burden isdischarged, any suspicion alone cannot form the foundation of judicial

Averdict; and any suggestion about suspicion ought to be examined by theCourt while guarding against conjectures and mere fantasy of doubtingmind. The learned counsel has iterated the principles in the decisionsaforesaid that there ought to be real, germane and valid suspiciousfeatures for which the propounded Will may be called in question, butthere had been no such feature or circumstance in the present case.B

18.5. As regards the manner of execution of the Will in question,the learned counsel has submitted that the ratio of Joyce Primrose Prestor(supra), that greater degree of presumption arises in the case of a“holograph” Will, is applicable to the present case too, where thesignificant contents relating to the particulars of the testatrix and herCunequivocal bequeath, in the opening and concluding passages, wereduly written in her own hand by the testatrix.

18.6. While dealing with the suspicious circumstances taken intoconsideration by the Trial Court and the High Court, the learned counselhas submitted that the alleged circumstances were either non-existent,Dor were not pleaded, or were not of any suspicion at all.

18.6.1. The learned counsel would submit that the circumstanceslike the appellant being the major beneficiary; she playing an active rolein execution of the Will; exclusion of son from the benefit of estate; theother daughter virtually not getting any share; and the manner of writingEof the Will were neither specifically pleaded nor they operate against thegenuineness of the Will in question. Further, according to the learnedcounsel, the circumstances like non-information of execution of Will tothe legal heirs; vague contents of Will; and contradictions in the statementsof witnesses are, on the face of it, imaginary and conjectural and couldFonly be ignored.

18.6.2. The learned counsel has contended, with reference to thedecisions in Leela Rajagopal and Ors. v. Kamala Menon Cocharanand Ors.: (2014) 15 SCC 570, Ved Mitra Verma v. Dharam DeoVerma: (2014) 15 SCC 578; Mahesh Kumar v. Vinod Kumar andGOrs.: (2012) 4 SCC 387; Savithri and Ors. v. Karthyayani Ammaand Ors.: (2007) 11 SCC 621; Pentakota Satyanarayana and Ors.v. Pentakota Seetharatnam and Ors.: (2005) 8 SCC 67; Uma DeviNambiar and Ors.v. T.C. Sidhan: (2004) 2 SCC 321; RamabaiPadmakar Patil and Ors. v. Rukminibai Vishnu Vekhande and Ors.:(2003) 8 SCC 537 and Rabindra Nath Mukherjee and Anr. v.HPanchanan Banerjee and Ors.: (1995) 4 SCC 459, that mere

presence of the propounder/beneficiary of Will at the time of itsexecution; or exclusion of the natural heirs from any benefit; oracquaintance of the propounder with any witness are not of suchsuspicious circumstances as to create legitimate doubts on thegenuineness of the Will.

18.6.3. As regards the question of monetary benefits to the attestingwitnesses, it is maintained on behalf of the appellant that there had notbeen any monetary benefit to PW-2; and monetary benefit to the daughterof PW-3 has to be seen in the background that the said witness is aMajor General and was closely related to the testatrix; there is noallegation as to the credibility of the said witness; and the frivolous doubtis being raised on his credibility only where an amount of Rs. 25,000/-‘out of love and affection’ has been given in the year 2006.

18.7. Thus, it is submitted that the Will in question is the genuinelast Will of the mother of parties; and the appellant being the executor,may be granted probate as prayed for.

The respondent No. 2

19. While countering the submissions made on behalf of theappellant, learned counsel for the respondent No. 2, son of testatrix whohad filed the objections and has consistently contested the matter, hasrecounted the suspicious circumstances taken into account by the TrialCourt and the High Court and has contended that the appellant has utterlyfailed to explain any of them and hence, the Will in question cannot besaid to have been made by the testatrix after understanding the meaningand purport of its contents.

19.1. In the forefront of arguments, learned counsel for therespondent No. 2 has submitted that the appellant, who is admittedly themajor beneficiary of the disputed bequest, indeed played prominentrole in execution of the Will in question and then, tried to deliberatelyconceal this fact of her active role in making of the document. Thelearned counsel has elaborated on these submissions with reference tothe pleadings and averments of the appellant at various stages ofproceedings where she consistently maintained that she ‘had role inthe making and execution’ of the Will in question. The learned counselhas also referred to the statement of the appellant in the cross-examinationto the effect that the testatrix did not ask her to find witnesses to the Willand that she might have called the witnesses to the Will on her own.

AThese assertions of the appellant, according to the learned counsel, areeffectively contradicted by PW-2 Urvinder S Kohli, who maintained thatit was the appellant who, on 18.05.2003, asked him to come to thetestatrix’s house and thereupon he agreed to come on 20.05.2003. Withreference to the decision inH. Ventakachala Iyengar (supra),the learnedcounsel has argued that when the propounder plays an active role inBexecution of Will and gets major benefit thereunder, that itself is asuspicious circumstance and the propounder must remove the suspicionby clear and satisfactory evidence, which the appellant has failed toadduce.

19.2. Further, the learned counsel for the respondent No. 2 hasCreferred to the other parts of the testimony of PW-2 Urvinder S Kohli tosubmit that this witness was barely known to the testatrix whereas hewas close to the appellant for about 30 years. With reference to thedecision of this Court inRamchandra Rambux v. Champabai and Ors.:AIR 1965 SC 354 and that of Delhi High Court in Rajesh Chand andDOrs. v. Dayawati and Ors.: ILR (1981) 2 Delhi 477, the learnedcounsel has contended that closeness of attesting witness of the Willwith the propounder is itself suspicious circumstance; and the appellanthas failed to explain this circumstance either.19.3. The learned counsel for the respondent has further madeEscathing remarks in relation to the bequest as proposed in the Will inquestion and has submitted that without any rhyme or reason, such unjustand unreasonable distribution of the assets of the testatrix has beenproposed which was not likely to be made by the mother of parties,particularly when she had nothing against her son and against the otherdaughter.F

19.3.1. The learned counsel would submit that in fact, the otherdaughter (respondent No. 1) of the testatrix was widow with anunmarried daughter; and she had been given the first floor of the house(which was the property of testatrix) for residence; and she was takingcare of testatrix, who was suffering from cancer. In the givenGcircumstances, there was no reason that testatrix would have left herwidowed and needy daughter at the mercy of the appellant with vagueand uncertain conditions of raising upper story construction by theappellant, as found in the Will in question. The learned counsel wouldalso submit that the bequeath made by the testatrix could be limited toHher property alone and cannot include property constructed by another

person; that property constructed using one’s own money will be theexclusive property of that personand as such, the conditional bequestmade in the present case, to appear as if the respondent No. 1 was likelyto get some property, had, in fact, been sham and illusory. According tothe learned counsel, such wordings in the Will as also the payments andhanding over car to the daughter of respondent No. 1 seems to haveprecluded her from contesting the matter in the first place but that doesnot give any weight or support to the Will in question.

19.3.2. While relying on the same decisions and with reference tothe material on record, the learned counsel has submitted that respondentNo. 2, though having remained away because of his enlistment in theArmy, had always been in good terms with his parents; and there wasno reason that his mother, the testatrix, would have given him only apittance of amount in the bank while disinheriting him from the immovableproperty.

19.3.3. The learned counsel has relied on the decision in RaniPurnima Debi (supra)and has also referred to the decision in RamPiari v. Bhagwant and Ors.: AIR 1990 SC 1742 to submit thatdisinheritance among heirs of equal degrees without providing any reasonfor exclusion of daughter also amounts to suspicious circumstance.

19.4. The learned counsel has also questioned the manner ofwriting and executing the document in question. The learned counselhas referred to the inconsistencies in the depositions of the witnesses inregard to the questions as whether the contents of the Will in questionwere made known to the testatrix and whether the same were discussedwith the witnesses. The learned counsel would submit that the testatrixwas barely 10[th] standard pass and was, obviously not conversant withsuch legal jargon as would appear in the body of the Will in question.Theappellant has attempted to say that she had no role in typing/scribing ofthe document and as per the witnesses, the contents were not discussedwith them. In such scenario, there remains another unexplainedsuspicious circumstance, as to who had drafted the Will in question andwho prepared the alleged note for the testatrix wherefrom, she was towrite at the opening and closing parts of the Will. The learned counselhas submitted that when the main part of the Will was typed, it isquestionable why the inconsequential portion was handwritten; and theselacunas in the evidence of the appellant raises possibility that the Willwas neither prepared nor understood by the testatrix. The learned counsel

Ahas referred to the decision in Krishan Dass Gupta v. The State &Ors: 2012 SCC OnLine DEL 977

19.5. Another long deal of arguments by the learned counsel forthe respondent No. 2 has been with reference to the alleged third pageof the Will. The learned counsel has referred to the very sameBproceedings in the Trial Court which we have recounted hereinbefore;and has submitted that in the Trial Court, appellant consistently maintainedthat there was no third page of the Will but when the issue of payment ofa sum of Rs. 25,000/- to the daughter of the attesting witness PW-3cropped up before the High Court, such payment was sought to bejustified with reference to the very same third page of the Will in question.CSuch shifting stand of the appellant, according to the learned counsel,gives rise to more suspicions; and it appears seriously questionable if theWill in question was indeed the last Will of the testatrix and was executedwith the contents as desired by her.

The respondent No. 1D

20. On the other flank of opposition, learned counsel for respondentNo. 1 has maintained that this respondent has all through disputed thevery execution of the Will by her mother; and the suspicious circumstanceshaving not been removed, the prayer for grant of probate has rightlybeen rejected.E

20.1. In the first place, learned counsel for respondent No. 1 hasvehemently countered the submissions that this respondent had acceptedthe claim of the appellant for probate of the Will in question and she isnot entitled to make the submissions in contest. The learned counsel hasreferred to the facts that even if this respondent did not file her writtenFstatement, she indeed led evidence rebutting the case of the appellantand the Courts have returned concurrent findings that her contest wasneither an afterthought nor malafide. The learned counsel has referredto the aforementioned decisions in H. Venkatachala Iyengar, RaniPurnima Debi and Smt. Jaswant Kaur to submit that Probate Court isGa Court of conscience; and where the propounder is to satisfy theconscience of the Court with removal of suspicious circumstances, therespondent No 1, elder and widowed daughter of the testatrix, has everyright to make submissions to assist the Court in such an enquiry. Withoutprejudice, the learned counsel has further submitted that even in civilcase where right of filing written statement is closed, the defendant isH

not precluded from demonstrating that the evidence led by the plaintiff isnot sufficient to make out case for grant of relief as prayed for. Thelearned counsel has, inter alia, referred to Section 58 of the EvidenceAct; Order VIII Rule 5(2) and Order VIII Rule 10 CPC and has reliedon the decision in Balraj Taneja and Anr. v. Sunil Madan and Anr.:(1999) 8 SCC 396. The learned counsel has also pointed out thatappellant never objected to the evidence of the respondent No. 1 andwhile relying on the decision in Modula India v. Kamakshya SinghDeo: (1988) 4 SCC 619, has contended that the submissions ofrespondent No. 1 cannot be discarded.

20.2. The learned counsel has referred to the position ofrespondent No. 1 and her relationship with the testatrix with thesubmissions that respondent No. 1 is the eldest daughter of the testatrix,being 10 years older to the appellant and three years older to therespondent No. 2; that the testatrix being aware of her adversecircumstances, had given her the first floor of the property (which is thesubject-matter of the present proceeding); that the relationship betweenthe testatrix and the respondent No. 1 had always been very good; thattestatrix being cancer patient, the respondent No. 1 was taking her fortreatment to Army Hospital; that due to the physical proximity whileresiding in the same building, the testatrix and the respondent No. 1 hadspecial bonds between them. In the given setup, according to the learnedcounsel, it seems quite unnatural that the testatrix would leave therespondent No. 1 at the mercy of appellant with such uncertainstipulations as contained in the contested Will.20.3. Arguing further, the learned counsel has contended thatthough the appellant has attempted to suggest that the respondent No. 1was excluded from the first floor of the property in question but, therehad not been any reason for such exclusion. The learned counsel hascontended what has been created by the Will in question is only an illusoryand vague bequest in relation to the respondent No. 1 for: a) the bequestto respondent No.1 is of floor above the first floor, which is not inexistence; b) no time frame is provided within which the appellant maychoose to execute either of the two options and no corresponding optionis provided to respondent No.1 meaning thereby, that the bequest madeby virtue of the Will in favour of respondent No.1 has been indefinitelypostponed; c) the entire property is vested in the appellant immediatelyupon the demise of the testatrix including the bequest made to respondent

ANo. 1; and d) the nature and quality of the expected construction has notbeen specified. According to the learned counsel, practically there is noeffective bequest in relation to the respondent No. 1 and there is noreason for the testatrix adopting the course as suggested.

20.4. The learned counsel has relied on the decisions of this CourtBin B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. : (2006) 13SCC 449; H. Ventakachala Iyengar; and Rani Purnima Debi (supra)amongst others, to submit that the Probate Court can investigate into thematter of Will despite the fact that the signature found thereon hasbeen proved or ingredients of Section 68 of the Evidence Act has beencomplied with. The learned counsel has referred to the definition of theCexpression “suspicion” in P. Ramanatha Aiyar’s Advanced LawLexicon and has also relied upon thedecision in Indu Bala (supra) tosubmit that suspicion permits the Court to realistically imagine any doubtfulor distrustful facet of case; and in testamentary jurisdiction, the Courtsare permitted to ferret out doubtful circumstances, which cannot beDdescribed as conjecture or surmise.

20.5. The learned counsel has again recounted variouscircumstances, including manner of making of the Will and contradictions/inconsistencies in the statements of the witnesses examined by theappellant, which have been taken into account in the impugned judgmentsEand have also been referred by the learned counsel for the respondentNo. 2; which need not be repeated. The learned counsel has also placedbefore us flow chart reflecting thirteen aspects of findings, includingthose of suspicious circumstances, which have been returned concurrentlyagainst the appellant and has contended that no case for interferencewith such concurrent findings is made out. The counsel has additionallyFrelied on the decision in Apoline D’Souza v. John D’Souza: AIR 2007SC 2219.

20.6. In another line of arguments, learned counsel for therespondent No. 1 has contended that the Will in question cannot havegreater sanctity only because the opening and closing parts areGhandwritten; rather it isstrange that the testatrix chose not to write themain bequest by hand and then, the handwritten portion of the Will inquestion is placed in squeezed manner and is not attested by any witness.The learned counsel would submit that such interlineations only go toshow that additions have been made in the Will subsequent to its executionHand failure to assign the reason behind such course is fatal to the case

put up by the propounder. The learned counsel has relied on the decisionin Dayananadi v. Rukma D. Suvarna & Ors.: (2012) 1 SCC 510 insupport of these contentions.

21. We have bestowed anxious consideration to the rivalsubmissions with reference to the law applicable and have also scannedthrough all the records pertaining to this case, including the records ofthe Trial Court and the High Court.

WILL – PROOF AND SATISFACTION OF THE COURT

22. As noticed, the basic point for determination in this appeal isas to whether the Trial Court and the High Court were justified in decliningto grant probate in relation to the Will dated 20.05.2003 as prayed for.Obviously, just and proper determination of this point would revolvearound the legal principles applicable as also the relevant factual aspectsof the case. Before entering into the factual aspects and the questions incontroversy, appropriate it would be to take note of the applicable legalprovisions and principles concerning execution of Will, its proof, and itsacceptance by the Court.

23. It remains trite that Will is the testamentary document thatcomes into operation after the death of the testator. The peculiar natureof such document has led to solemn provisions in the statutes for makingof Will and for its proof in Court of law. Section 59 of the SuccessionAct provides that every person of sound mind, not being minor, maydispose of his property by Will. Will or any portion thereof, the makingof which has been caused by fraud or coercion or by any such importunitythat has taken away the free agency of the testator, is declared to bevoid under Section 61 of the Succession Act; and further, Section 62 ofthe Succession Act enables the maker of Will to make or alter thesame at any time when he is competent to dispose of his property byWill. Chapter III of Part IV of the Succession Act makes the provisionfor execution of unprivileged Wills (as distinguished from privileged Willsprovided for in Chapter IV) with which we are not concerned in thiscase.

23.1. Sections 61 and 63 of the Succession Act, relevant for thepresent purpose, could be usefully extracted as under: –

“61. Will obtained by fraud, coercion or importunity.- Willor any part of Will, the making of which has been caused by

fraud or coercion, or by such importunity as takes away the freeagency of the testator, is void.

63. Execution of unprivileged Wills.-Every testator, not beinga soldier employed in an expedition or engaged in actual warfare,Bor an airman so employed or engaged, or mariner at sea, shallexecute his Will according to the following rules:-

(a) The testator shall sign or shall affix his mark to the Will, or itshall be signed by some other person in his presence and by hisdirection.

(b) The signature or mark of the testator, or the signature of theperson signing for him, shall be so placed that it shall appear thatit was intended thereby to give effect to the writing as Will.

(c) The Will shall be attested by two or more witness, each ofDwhom has seen the testator sign or affix his mark to the Will orhas seen some other person sign the Will, in the presence and bythe direction of the testator, or has received from the testator apersonal acknowledgment of his signature or mark, or the signatureof such other person; and each of the witnesses shall sign the Willin the presence of the testator, but it shall not be necessary thatEmore than one witness be present at the same time, and noparticular form of attestation shall be necessary.”23.2. Elaborate provisions have been made in Chapter VI of theSuccession Act (Sections 74 to 111), for construction of Wills which, intheir sum and substance, make the intention of legislature clear that anyFirrelevant misdescription or error is not to operate against the Will; andapproach has to be to give effect to Will once it is found to have beenexecuted in the sound state of mind by the testator while exercising hisown free will. However, as per Section 81 of the Succession Act, extrinsicevidence is inadmissible in case of patent ambiguity or deficiency in theWill; and as per Section 89 thereof, Will or bequest not expressive ofGany definite intention is declared void for uncertainty. Sections 81 and 89read as under:-

“81. Extrinsic evidence inadmissible in case of patentambiguity or deficiency.- Where there is an ambiguity ordeficiency on the face of Will, no extrinsic evidence as to theHintentions of the testator shall be admitted.

*********

89. Will or bequest void for uncertainty.- Will or bequestnot expressive of any definite intention is void for uncertainty.”

Moreover, it is now well settled that when the Will is surroundedby suspicious circumstances, the Court would expect that the legitimatesuspicion should be removed before the document in question is acceptedas the last Will of the testator.

23.3. As noticed, as per Section 63 of the Succession Act, the Willought to be attested by two or more witnesses. Hence, any documentpropounded as Will cannot be used as evidence unless at least oneattesting witness has been examined for the purpose of proving itsexecution, if such witness is available and is capable of giving evidenceas per the requirements of Section 68 of the Evidence Act, that reads asunder: –

“68. Proof of execution of document required by law to beattested.-If document is required by law to be attested, it shallnot be used as evidence until one attesting witness at least hasbeen called for the purpose of proving its execution, if there be anattesting witness alive, and subject to the process of the Courtand capable of giving evidence:

Provided that it shall not be necessary to call an attestingwitness in proof of the execution of any document, not being aWill, which has been registered in accordance with the provisionsof the Indian Registration Act, 1908 (16 of 1908), unless itsexecution by the person by whom it purports to have been executedis specifically denied.”

24. We may now take note of the relevant principles settled bythe consistent decisions in regard to the process of examination of Willwhen propounded before Court of law.

24.1. In the case of H. Venkatachala Iyengar (supra), 3-JudgeBench of this Court traversed through the vistas of the issues relatedwith execution and proof of Will and enunciated few fundamentalguiding principles that have consistently been followed and applied inalmost all the cases involving such issues. The synthesis and expositionby this Court in paragraphs 18 to 22 of the said decision could be usefullyreproduced as under:-

“18. What is the true legal position in the matter of proof of wills?It is well known that the proof of wills presents recurring topic

for decision in courts and there are large number of judicialpronouncements on the subject. The party propounding will orotherwise making claim under will is no doubt seeking to provea document and, in deciding how it is to be proved, we mustinevitably refer to the statutory provisions which govern the proofof documents. S. 67 and 68, Evidence Act are relevant for thispurpose. Under S. 67, if document is alleged to be signed by anyperson, the signature of the said person must be proved to be inhis handwriting, and for proving such handwriting under Ss. 45and 47 of the Act the opinions of experts and of persons acquaintedwith the handwriting of the person concerned are made relevant.Section 68 deals with the proof of the execution of the documentrequired by law to be attested; and it provides that such documentshall not be used as evidence until one attesting witness at leasthas been called for the purpose of proving its execution. Theseprovisions prescribe the requirements and the nature of proofwhich must be satisfied by the party who relies on document ina Court of law. Similarly, Ss. 59 and 63 of the Indian SuccessionAct are also relevant. Section 59 provides that every person ofsound mind, not being minor, may dispose of his property by willand the three illustrations to this section indicate what is meant bythe expression “a person of sound mind” in the context. Section63 requires that the testator shall sign or affix his mark to the willor it shall be signed by some other person in his presence and byhis direction and that the signature or mark shall be so made thatit shall appear that it was intended thereby to give effect to thewriting as will. This section also requires that the will shall beattested by two or more witnesses as prescribed. Thus thequestion as to whether the will set up by the propounder isproved to be the last will of the testator has to be decidedin the light of these provisions. Has the testator signed thewill? Did he understand the nature and effect of thedispositions in the will? Did he put his signature to the willknowing what it contained? Stated broadly it is the decisionof these questions which determines the nature of thefinding on the question of the proof of wills. It would primafacie be true to say that the will has to be proved like any otherdocument except as to the special requirements of attestationprescribed by S. 63 of the Indian Succession Act. As in the case

of proof of other documents so in the case of proof of wills itwould be idle to expect proof with mathematical certainty. Thetest to be applied would be the usual test of the satisfaction of theprudent mind in such matters.

19. However, there is one important feature which distinguisheswills from other documents. Unlike other documents the willspeaks from the death of the testator, and so, when it is propoundedor produced before Court, the testator who has already departedthe world cannot say whether it is his will or not; and this aspectnaturally introduces an element of solemnity in the decision of thequestion as to whether the document propounded is proved to bethe last will and testament of the departed testator. Even so, indealing with the proof of wills the Court will start on the sameenquiry as in the case of the proof of documents. The propounderwould be called upon to show by satisfactory evidence that thewill was signed by the testator, that the testator at the relevanttime was in sound and disposing state of mind, that he understoodthe nature and effect of the dispositions and put his signature tothe document of his own free will. Ordinarily when the evidenceadduced in support of the will is disinterested, satisfactory andsufficient to prove the sound and disposing state of the testator’smind and his signature as required by law, Courts would be justifiedin making finding in favour of the propounder. In other words,the onus on the propounder can be taken to be dischargedon proof of the essential facts just indicated.

20. There may, however, be cases in which the execution ofthe will may be surrounded by suspicious circumstances.The alleged signature of the testator may be very shaky anddoubtful and evidence in support of the propounder’s case thatthe signature in question is the signature of the testator may notremove the doubt created by the appearance of the signature; thecondition of the testator’s mind may appear to be very feeble anddebilitated; and evidence adduced may not succeed in removingthe legitimate doubt as to the mental capacity of the testator; thedispositions made in the will may appear to be unnatural, improbableor unfair in the light of relevant circumstances; or, the will mayotherwise indicate that the said dispositions may not be the resultof the testator’s free will and mind. In such cases the Court

Awould naturally expect that all legitimate suspicions shouldbe completely removed before the document is acceptedas the last will of the testator. The presence of suchsuspicious circumstances naturally tends to make the initialonus very heavy; and, unless it is satisfactorily discharged,Courts would be reluctant to treat the document as the lastBwill of the testator. It is true that, if caveat is filed alleging theexercise of undue influence, fraud or coercion in respect of theexecution of the will propounded, such pleas may have to be provedby the caveators; but, even without such pleas circumstances mayraise doubt as to whether the testator was acting of his ownCfree will in executing the will, and in such circumstances, it wouldbe part of the initial onus to remove any such legitimate doubtsin the matter.21. Apart from the suspicious circumstances to which we havejust referred in some cases the wills propounded disclose anotherDinfirmity. Propounders themselves take prominent part inthe execution of the wills which confer on them substantialbenefits. If it is shown that the propounder has taken aprominent part in the execution of the will and has receivedsubstantial benefit under it, that itself is generally treatedas suspicious circumstance attending the execution of theEwill and the propounder is required to remove the saidsuspicion by clear and satisfactory evidence. It is in connectionwith wills that present such suspicious circumstances that decisionsof English Courts often mention the test of the satisfaction ofjudicial conscience. It may be that the reference to judicialFconscience in this connection is heritage from similar observationsmade by ecclesiastical Courts in England when they exercisedjurisdiction with reference to wills; but any objection to the use ofthe word ‘conscience’ in this context would, in our opinion, bepurely technical and academic, if not pedantic. The test merelyemphasizes that, in determining the question as to whether anGinstrument produced before the Court is the last will of the testator,the Court is deciding solemn question and it must be fully satisfiedthat it had been validly executed by the testator who is no longeralive.

22. It is obvious that for deciding material questions of fact whichHarise in applications for probate or in actions on wills, no hard and

[DINESH MAHESHWARI, J.]

fast or inflexible rules can be laid down for the appreciation of theevidence. It may, however, be stated generally that apropounder of the will has to prove the due and validexecution of the will and that if there are any suspiciouscircumstances surrounding the execution of the will thepropounder must remove the said suspicions from the mindof the Court by cogent and satisfactory evidence. It is hardlynecessary to add that the result of the application of these twogeneral and broad principles would always depend upon the factsand circumstances of each case and on the nature and quality ofthe evidence adduced by the parties. It is quite true that, asobserved by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N895 : (AIR 1946 PC 156), “where will is charged with suspicion,the rules enjoin reasonable scepticism, not an obdurate persistencein disbelief. They do not demand from the Judge, even incircumstances of grave suspicion, resolute and impenetrableincredulity. He is never required to close his mind to the truth”. Itwould sound platitudinous to say so, but it is nevertheless true thatin discovering truth even in such cases the judicial mind mustalways be open though vigilant, cautious and circumspect.”

(emphasis supplied)

24.2. In Rani Purnima Debi (supra), this Court referred to theaforementioned decision in H. Venkatachala Iyengar and furtherexplained the principles which govern the proving of Will as follows:-

“5. Before we consider the facts of this case it is well to set outthe principles which govern the proving of will. This wasconsidered by this Court in H. Venkatachala Iyengar v. B. N.Thimmajamma, (1959) Supp (1) SCR 426: AIR 1959 SC 443. Itwas observed in that case that the mode of proving will did notordinarily differ from that of proving any other document exceptas to the special requirement of attestation prescribed in the caseof will by S. 63 of the Indian Succession Act. The onus ofproving the will was on the propounder and in the absence ofsuspicious circumstances surrounding the execution of the willproof of testamentary capacity and signature of the testator asrequired by law was sufficient to discharge the onus. Where,however, there were suspicious circumstances, the onus wouldbe on the propounder to explain them to the satisfaction of the

ACourt before the will could be accepted as genuine. If the caveatoralleged undue influence, fraud or coercion, the onus would be onhim to prove the same. Even where there were no such pleasbut the circumstances gave rise to doubts, it was for thepropounder to satisfy the conscience of the Court. Further,what are suspicious circumstances was also considered in thisBcase. The alleged signature of the testator might be very shakyand doubtful and evidence in support of the propounder’s casethat the signature in question was the signature of the testatormight not remove the doubt created by the appearance of thesignature. The condition of the testator’s mind might appear to beCvery feeble and debilitated and evidence adduced might notsucceed in removing the legitimate doubt as to the mental capacityof the testator; the dispositions made in the will might appearto be unnatural, improbable or unfair in the light of relevantcircumstances; or the will might otherwise indicate that thesaid dispositions might not be the result of the testator’sDfree will and mind. In such cases, the Court would naturallyexpect that all legitimate suspicions should be completely removedbefore the document was accepted as the last will of the testator.Further, propounder himself might take prominent partin the execution of the will which conferred on himEsubstantial benefits. If this was so it was generally treatedas suspicious circumstance attending the execution of thewill and the propounder was required to remove the doubts byclear and satisfactory evidence. But even when where theresuspicious circumstances and the propounder succeeded inremoving them, the Court would grant probate, though the willFmight be unnatural and might cut off wholly or in part nearrelations.”

(emphasis supplied)

24.3. In the case of Indu Bala Bose (supra), this Court again

Gsaid,-

“7. This Court has held that the mode of proving Will does notordinarily differ from that of proving any other document exceptto the special requirement of attestation prescribed in the case ofa Will by Section 63 of the Succession Act. The onus of provingHthe Will is on the propounder and in the absence of suspicious

circumstances surrounding the execution of the Will, proof oftestamentary capacity and the signature of the testator as requiredby law is sufficient to discharge the onus. Where however thereare suspicious circumstances, the onus is on the propounderto explain them to the satisfaction of the court before thecourt accepts the Will as genuine. Even where circumstancesgive rise to doubts, it is for the propounder to satisfy the conscienceof the court. The suspicious circumstances may be as to thegenuineness of the signatures of the testator, the conditionof the testator’s mind, the dispositions made in the Willbeing unnatural, improbable or unfair in the light of relevantcircumstances, or there might be other indications in the Will toshow that the testator’s mind was not free. In such case thecourt would naturally expect that all legitimate suspicions shouldbe completely removed before the document is accepted as thelast Will of the testator. If the propounder himself takes prominentpart in the execution of the Will which confers substantial benefiton him, that is also circumstance to be taken into account, andthe propounder is required to remove the doubts by clear andsatisfactory evidence. If the propounder succeeds in removingthe suspicious circumstances the court would grant probate, evenif the Will might be unnatural and might cut off wholly or in partnear relations.

8 . Needless to say that any and every circumstance is not a“suspicious” circumstance. circumstance would be“suspicious” when it is not normal or is not normallyexpected in normal situation or is not expected of normalperson.”

(emphasis supplied)

24.4. We may also usefully refer to the principles enunciated inthe case of Jaswant Kaur (supra) for dealing with Will shrouded insuspicion, as follows: –

“9. In cases where the execution of will is shrouded insuspicion, its proof ceases to be simple lis between theplaintiff and the defendant. What, generally, is an adversaryproceeding becomes in such cases matter of the court’sconscience and then the true question which arises forconsideration is whether the evidence led by the propounder

ABC

of the will is such as to satisfy the conscience of the courtthat the will was duly executed by the testator. It is impossibleto reach such satisfaction unless the party which sets up the willoffers cogent and convincing explanation of the suspiciouscircumstances surrounding the making of the will.”

(emphasis supplied)

24.5. In the case of Uma Devi Nambiar (supra), this Courtextensively reviewed the case law dealing with Will, including theConstitution Bench decision of this Court in the case of Shashi Kumar

Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.: AIR 1964CSC 529, and observed that mere exclusion of the natural heirs or givingof lesser share to them, by itself, will not be considered to be suspiciouscircumstance. This Court observed, inter alia, as under:-

“15. Section 63 of the Act deals with execution of unprivilegedWills. It lays down that the testator shall sign or shall affix hisDmark to the Will or it shall be signed by some other person in hispresence and by his direction. It further lays down that the Willshall be attested by two or more witnesses, each of whom hasseen the testator signing or affixing his mark to the Will or hasseen some other person sign the Will, in the presence and by thedirection of the testator and each of the witnesses shall sign theEWill in the presence of the testator. Section 68 of the IndianEvidence Act, 1872 (in short the “Evidence Act”) mandatesexamination of one attesting witness in proof of Will, whetherregistered or not. The law relating to the manner and onus ofproof and also the duty cast upon the court while dealing with aFcase based upon Will has been examined in considerable detailin several decisions of this Court ……. Constitution Bench ofthis Court in Shashi Kumar Banerjee’s case succinctly indicatedthe focal position in law as follows: (AIR p. 531, para 4)

“The mode of proving Will does not ordinarily differ fromthat of proving any other document except as to the specialrequirement of attestation prescribed in the case of Will bySection 63 of the Indian Succession Act. The onus of provingthe Will is on the propounder and in the absence of suspiciouscircumstances surrounding the execution of the Will, proof oftestamentary capacity and the signature of the testator asrequired by law is sufficient to discharge the onus. Where

however there are suspicious circumstances, the onus is onthe propounder to explain them to the satisfaction of the courtbefore the court accepts the Will as genuine. Where thecaveator alleges undue influence, fraud and coercion, the onusis on him to prove the same. Even where there are no suchpleas but the circumstances give rise to doubts, it is for thepropounder to satisfy the conscience of the court. The suspiciouscircumstances may be as to the genuineness of the signatureof the testator, the condition of the testator’s mind, thedispositions made in the Will being unnatural, improbable orunfair in the light of relevant circumstances or there might beother indications in the Will to show that the testator’s mindwas not free. In such case the court would naturally expectthat all legitimate suspicion should be completely removed beforethe document is accepted as the last Will of the testator. If thepropounder himself takes part in the execution of the Will whichconfers substantial benefit on him, that is also circumstanceto be taken into account, and the propounder is required toremove the doubts by clear and satisfactory evidence. If thepropounder succeeds in removing the suspicious circumstancesthe court would grant probate, even if the Will might be unnaturaland might cut off wholly or in part near relations.”

16. Will is executed to alter the ordinary mode of successionand by the very nature of things it is bound to result in earlierreducing or depriving the share of natural heirs. If person intendshis property to pass to his natural heirs, there is no necessity at allof executing Will. It is true that propounder of the Will has toremove all suspicious circumstances. Suspicion means doubt,conjecture or mistrust. But the fact that natural heirs have eitherbeen excluded or lesser share has been given to them, by itselfwithout anything more, cannot be held to be suspiciouscircumstance specially in case where the bequest has been madein favour of an offspring. As held in P.P.K. Gopalan Nambiar v.P.P.K. Balakrishnan Nambiar and Ors.: [1995] 2 SCR 585, it isthe duty of the propunder of the Will to remove all the suspectedfeatures, but there must be real, germane and valid suspiciousfeatures and not fantasy of the doubting mind. It has been heldthat if the propounder succeeds in removing the suspiciouscircumstances, the court has to give effect to the Will, even if the

Will might be unnatural in the sense that it has cut off wholly or inpart near relations. ….. In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs. and Ors.: AIR 1995 SC1684, it was observed that the circumstance of deprivation ofnatural heirs should not raise any suspicion because the wholeidea behind execution of the Will is to interfere with the normalline of succession and so, natural heirs would be debarred in everycase of Will. Of course, it may be that in some cases they arefully debarred and in some cases partly.”

24.6. In the case of Mahesh Kumar (supra), this Court indicatedthe error of approach on the part of the High Court while appreciatingthe evidence relating to the Will as follows:-

“44. The issue which remains to be examined is whether the HighCourt was justified in coming to the conclusion that the executionof the will dated 10-2-1992 was shrouded with suspicion and theappellant failed to dispel the suspicion? At the outset, we deem itnecessary to observe that the learned Single Judge misread thestatement of Sobhag Chand (DW3) and recorded something whichdoes not appear in his statement. While Sobhag Chand categoricallystated that he had signed as the witness after Shri Harishankarhad signed the will, the portion of his statement extracted in theimpugned judgment gives an impression that the witnesses hadsigned even before the executant had signed the will.

45. Another patent error committed by the learned Single Judge isthat he decided the issue relating to validity of the will by assumingthat both the attesting witnesses were required to append theirFsignatures simultaneously. Section 63(c) of the 1925 Act does notcontain any such requirement and it is settled law that examinationof one of the attesting witnesses is sufficient. Not only this, whilerecording an adverse finding on this issue, the learned Single Judgeomitted to consider the categorical statements made by DW 3and DW 4 that the testator had read out and signed the will inGtheir presence and thereafter they had appended their signatures.

46. The other reasons enumerated by the learned Single Judgefor holding that the execution of will was highly suspicious arebased on mere surmises/conjectures. The observation of thelearned Single Judge that the possibility of obtaining signatures of

Shri Harishankar and attesting witnesses on blank paper andpreparation of the draft by Shri S.K. Agarwal, Advocate on pre-signed papers does not find even semblance of support from thepleadings and evidence of the parties. If Respondent 1 wanted toshow that the will was drafted by the advocate after ShriHarishankar and attesting witnesses had signed blank papers, hecould have examined or at least summoned Shri S.K. Agarwal,Advocate, who had represented him before the Board of Revenue.

24.7. Another decision cited on behalf of the appellant in the caseof Leela Rajagopal may also be referred where this Court summarisedthe principles that ultimately, the judicial verdict in relation to Will andsuspicious circumstances shall be on the basis of holistic view of thematter with consideration of all the unusual features and suspiciouscircumstances put together and not on the impact of any single feature.This Court said,-

“13. will may have certain features and may have been executedin certain circumstances which may appear to be somewhatunnatural. Such unusual features appearing in will or theunnatural circumstances surrounding its execution will definitelyjustify close scrutiny before the same can be accepted. It is theoverall assessment of the court on the basis of such scrutiny; thecumulative effect of the unusual features and circumstances whichwould weigh with the court in the determination required to bemade by it. The judicial verdict, in the last resort, will be on thebasis of consideration of all the unusual features and suspiciouscircumstances put together and not on the impact of any singlefeature that may be found in will or singular circumstance thatmay appear from the process leading to its execution orregistration. This, is the essence of the repeated pronouncementsmade by this Court on the subject including the decisions referredto and relied upon before us.”24.8. We need not multiply the references to all and otherdecisions cited at the Bar, which essentially proceed on the aforesaidprinciples while applying the same in the given set of facts andcircumstances. Suffice would be to point out that in recent decision inCivil Appeal No. 6076 of 2009: Shivakumar & Ors. v.Sharanabasppa & Ors., decided on 24.04.2020, this Court, after

Atraversing through the relevant decisions, has summarised the principlesgoverning the adjudicatory process concerning proof of Will as follows:–

“1. Ordinarily, Will has to be proved like any other document;the test to be applied being the usual test of the satisfaction of theprudent mind. Alike the principles governing the proof of otherdocuments, in the case of Will too, the proof with mathematicalaccuracy is not to be insisted upon.

2. Since as per Section 63 of the Succession Act, Will is requiredto be attested, it cannot be used as evidence until at least oneattesting witness has been called for the purpose of proving itsexecution, if there be an attesting witness alive and capable ofgiving evidence.

3. The unique feature of Will is that it speaks from the death ofthe testator and, therefore, the maker thereof is not available fordeposing about the circumstances in which the same was executed.This introduces an element of solemnity in the decision of thequestion as to whether the document propounded is the last Willof the testator. The initial onus, naturally, lies on the propounderbut the same can be taken to have been primarily discharged onproof of the essential facts which go into the making of Will.

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

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

6. circumstance is “suspicious” when it is not normal or is ‘notnormally expected in normal situation or is not expected of anormal person’. As put by this Court, the suspicious features mustbe ‘real, germane and valid’ and not merely the ‘fantasy of thedoubting mind.’

7. As to whether any particular feature or set of features qualifyas “suspicious” would depend on the facts and circumstances ofeach case. shaky or doubtful signature; feeble or uncertainmind of the testator; an unfair disposition of property; an unjustexclusion of the legal heirs and particularly the dependants; anactive or leading part in making of the Will by the beneficiarythereunder et cetera are some of the circumstances which maygive rise to suspicion. The circumstances above-noted are onlyillustrative and by no means exhaustive because there could beany circumstance or set of circumstances which may give rise tolegitimate suspicion about the execution of the Will. On the otherhand, any of the circumstance qualifying as being suspicious couldbe legitimately explained by the propounder. However, suchsuspicion or suspicions cannot be removed by mere proof of soundand disposing state of mind of the testator and his signature coupledwith the proof of attestation.8. The test of satisfaction of the judicial conscience comes intooperation when document propounded as the Will of the testatoris surrounded by suspicious circumstance/s. While applying suchtest, the Court would address itself to the solemn questions as towhether the testator had signed the Will while being aware of itscontents and after understanding the nature and effect of thedispositions in the Will?

9. In the ultimate analysis, where the execution of Will is shroudedin suspicion, it is matter essentially of the judicial conscience ofthe Court and the party which sets up the Will has to offer cogentand convincing explanation of the suspicious circumstancessurrounding the Will.”

CONTEST OF THE MATTER BY RESPONDENT NO.1

25. Having taken note of the principles which shall be the guidingfactor in dealing with the main questions posed in this matter, we mayexamine the rival contentions. Before entering into the contentions

Arelating to the suspicious circumstances concerning the Will in question,it would be appropriate to deal with and dispose of preliminary objectionof the learned counsel for the appellant as regards contest of the matterby respondent No.1. As noticed, it has been submitted with reference toSection 268 of the Succession Act, Order VIII Rule 10, Order XIV Rule1(6) and Order XV Rule 2 CPC and the case of Bachhaj Nahar (supra)Bthat the status of respondent No.1 remains that of defendant who hasnot filed the written statement and who is not at issue; and hence, thecontentions urged on her behalf need no consideration and the evidenceled by her remains inadmissible. The submissions have been counteredwith reference to the principles in H. Venkatachala Iyengar and RaniCPurnima Debi (supra) as also with reference to Order VIII Rule 5(2),Order VIII Rule 10 CPC and the decision in Balraj Taneja (supra). Itis submitted that ultimately, the Probate Court is Court of conscienceand the respondent No.1, being the elder daughter of the testatrix, hasevery right to make submissions concerning the Will in question. In our

view, the submission made on behalf of the appellant seeking exclusionDof respondent No.1 remains totally baseless and could only be rejected.

25.1. The objection on behalf of the appellant does not stand inconformity with the law declared in H. Venkatachala Iyengar andRani Purnima Debi (supra) and scores of other decisions where thisCourt has consistently held that the probate proceeding is ultimately aEmatter of conscience of the Court; and irrespective of whether any pleain opposition is taken or not, propounder of Will is required to satisfythe conscience of the Court with removal of all the suspiciouscircumstances. By the very nature and consequence of this proceeding,filing or non-filing of written statement or objections by any party palesFinto insignificance and is of no effect. The probate proceeding is notmerely inter-partes proceeding but leads to judgment in rem and,therefore, even when no one contests, it does not ipso facto lead togrant of probate. The probate is granted only on proof of Will as also onremoval of suspicious circumstances, if there be any, to the final

satisfaction of the conscience of the Court.G7 The referred provisions of CPC read as under:-Order VIII Rule 10:

“10.Procedure when party fails to present written statement called for by Court.-Where any party from whom written statement is required under rule 1 or rule 9 failsto present the same within the time permitted or fixed by the Court, as the case may be,the Court shall pronounce judgment against him, or make such order in relation to theH

25.2. In view of the above, reference to the provisions of OrderVIII Rule 10, Order XIV Rule 1(6) and Order XV Rule 2[7 ]remainsinapposite in relation to the proceeding before Probate Court. We mayhasten to observe that even in regular civil suit, merely for want ofwritten statement by defendant, it is not necessary that judgmentwould always follow in favour of the plaintiff without proof of the basicfacts and without making out clear case of right to relief. Similarly, thedecision in the case of Bachhaj Nahar (supra) that relief cannot begranted in any Court without requisite pleadings has hardly any applicationto the question at hand.

25.3. In the case of Balraj Taneja (supra), this Court examinedthe provisions contained in sub-rule (2) of Rule 5 of Order XVIII ofCPC[8] and said that,-

“11. Sub-rule (2) provides that if the defendant has not filed hiswritten statement, it would be lawful for the court to pronouncejudgment on the basis of the facts contained in the plaint. The rulefurther proceeds to say that notwithstanding that the facts statedin the plaint are treated as admitted, the court, though it can lawfullypass the judgment, may before passing the judgment require suchfact to be proved….”

suit as it thinks fit and on the pronouncement of such judgment decree shall be drawnup.”Order XIV Rule 1(6):“1. Framing of issues.-*********(6) Nothing in this rule requires the Court to frame and record issues where the defendantat the first hearing of the suit makes no defence.”Order XV Rule 2(1):“2. One of several defendants not at issue.- (1) Where there are more defendantsthan one, and any one of the defendants is not at issue with the plaintiff on anyquestion of law or of fact, the Court may at once pronounce judgment for or againstsuch defendants and the suit shall proceed only against the other defendants.*********”8 The referred provisions of CPC read as under:Order VIII Rule 5(2)“5. Specific denial.-*********(2) Where the defendant has not filed pleading, it shall be lawful for the Court topronounce judgment on the basis of the facts contained in the plaint, except as againsta person under disability, but the Court may, in its discretion, require any such fact tobe proved.*********”

AApart from the above, even as regards Rule 10 of Order XVIII,this Court said,-

“27. In view of the above, it is clear that the court, at no stage,can act blindly or mechanically. While enabling the court topronounce judgment in situation where no written statement isBfiled by the defendant, the court has also been given the discretionto pass such order as it may think fit as an alternative. This is alsothe position under Order 8 Rule 10 CPC where the court caneither pronounce judgment against the defendant or pass suchorder as it may think fit.”

C25.4. We need not multiply the authorities and discussion in thisregard. Suffice it to say that even in regular civil suit, mere non-filingof written statement by the defendant does not always lead to judgmentin favour of the plaintiff. Noteworthy it is that regular civil suit usuallyleads to judgment inter-partes and not in rem. Even then, therequirement of proof is not obviated. When the proceeding is solemn inDnature like that for probate, which leads to judgment in rem, it is beyondthe cavil thatmere non-filing of caveat or opposition is not decisive of thematter. The propounder, in every matter for grant of probate, irrespectiveof opposition or even admission by any party, is required to satisfy theconscience of the Court, with removal of suspicious circumstances, ifEany.25.5. Apart from the aforementioned general principles, it is alsosignificant to notice in the present case that the respondent No.1 is noneother but the elder widowed daughter of testatrix regarding whom, somesemblance of right, via the construction to be carried out by the appellant,Fis proposed in the Will in question. Looking to her status as elder widoweddaughter of the testatrix and looking to the stipulation in the Will in question,it is evident that even without filing any written statement, the respondentNo.1 is entitled to show that the purported grant of some right to her isillusory or is, in fact, no grant at all; and that her mother would not haveput her in such an insecure position as would be the result of the Will. AsGa necessary corollary, her right to demonstrate the suspiciouscircumstances is inherent in the very process envisaged for the ProbateCourt. This is apart from the fact that the respondent No.1 has indeedexamined herself as witness without objection by the appellant.

25.6. Thus, the objection against contest by the respondent No.1,Has raised on behalf of the appellant, deserves to be, and is herebyrejected.

SUSPICIOUS CIRCUMSTANCES CONCERNING THEWILL IN QUESTION

26. While examining the relevant factual aspects andcircumstances of this case on the anvil of the principles aforesaid, wemay usefully observe that in the case of Leela Rajagopal (supra), thisCourt found justified the concurrent findings on due execution of Willand, in the context of facts, participation of the beneficiary in executionof the Will and his acquaintance with one of the attesting witness werefound to be reasonably explained. However, significantly, in the saidcase, this Court also cautioned against repeated reappreciation ofevidence, particularly in the appeal lodged only by way of special leave,in the following words:-

“17. Before parting we would like to observe that the very factthat an appeal to this Court can be lodged only upon grant ofspecial leave to appeal would indicate the highly circumscribednature of the jurisdiction of this Court. In contrast to statutoryappeal, an appeal lodged upon grant of special leave pursuant to aprovision of the Constitution would call for highly economicexercise of the power which though wide to strike at injusticewherever it occurs must display highly judicious application thereof.Determination of facts made by the High Court sitting as afirst appellate court or even while concurring as secondappellate court would not be reopened unless the samegives rise to questions of law that require serious debateor discloses wholly unacceptable conclusions of fact whichplainly demonstrate travesty of justice. Appreciation orreappreciation of evidence must come to halt at some stage ofthe judicial proceedings and cannot percolate to the constitutionalcourt exercising jurisdiction under Article 136.”

(emphasis supplied)

26.1. In the present case too, the Trial Court has returned thefindings against the appellant after due appreciation of evidence and theHigh Court has affirmed such findings after independent and thoroughexamination of evidence. There appears hardly any scope for disturbingsuch concurrent findings by entering into the process of reappreciationof entire evidence yet, in view of the submissions made and in the interestof justice, we have gone through the material on record to find if there

Abe any such perversity which might result in serious miscarriage of justice.We find none.

27. As noticed, there has not been any question on the testamentarycapacity and soundness of mind of the testatrix; and her handwriting asalso signatures on the Will in question are also beyond controversy.BHowever, the Trial Court and the High Court have concurrently foundsome such suspicious circumstances which are of material bearing andwhich have remained unexplained. Put in nutshell, the unexplainedsuspicious circumstances so found are: (a) that appellant, the majorbeneficiary, played an active role in execution of the Will in question andattempted to conceal this fact before the Court; (b) that there had notCbeen any plausible reason for non-inclusion of the only son and otherdaughter of the testatrix in the process of execution of the Will and forexcluding them from the major part of the estate in question; (c) thatthere was no clarity about the construction supposed to be carried outby the appellant; (d) that the manner of writing and execution of the WillDwith technical and legal words was highly doubtful; and (e) that the

attesting witnesses were unreliable and there were contradictions in thestatements of the witnesses. Because of these major circumstancescoupled with various supplemental factors, the Trial Court and the HighCourt felt dissatisfied on the root question as to whether the testatrixduly executed the Will in question after understanding its contents.E

28. There is no doubt that any of the factors taken into account bythe Trial Court and the High Court, by itself and standing alone, cannotoperate against the validity of the propounded Will. That is to say that,the Will in question cannot be viewed with suspicion only because theappellant had played an active role in execution thereof though she is theFmajor beneficiary; or only because the respondents were not included inthe process of execution of the Will; or only because of unequal distributionof assets; or only because there is want of clarity about the constructionto be carried out by the appellant; or only because one of the attestingwitnesses being acquaintance of the appellant; or only because there isGno evidence as to who drafted the printed part of the Will and the notefor writing the opening and concluding passages by the testatrix in herown hand; or only because there is some discrepancy in the oral evidenceled by the appellant; or only because of any other factor taken into accountby the Courts or relied upon by the respondents. The relevant considerationwould be about the quality and nature of each of these factors and then,H

the cumulative effect and impact of all of them upon making of the Willwith free agency of the testatrix. In other words, an individual factormay not be decisive but, if after taking all the factors together, conscienceof the Court is not satisfied that the Will in question truly represents thelast wish and propositions of the testator, the Will cannot get the approvalof the Court; and, other way round, if on holistic view of the matter, theCourt feels satisfied that the document propounded as Will indeed signifiesthe last free wish and desire of the testator and is duly executed inaccordance with law, the Will shall not be disapproved merely for onedoubtful circumstance here or another factor there.

29. Keeping the applicable principles in view, we may examinethe factors and circumstances which are suspicious in character andtheir overall impact on the document in question.

29.1. While entering into the facts and circumstances related withthe Will, profitable it would be to recapitulate the background and the setup in which the contested Will is said to have been executed. Theimmovable property in question at No. D-179, Defence Colony, NewDelhi was originally of the ownership of father of the contesting parties,husband of testatrix. The ground floor of this property was given in giftto the appellant on 25.01.2001, whereas the first floor and the otherportion/s came to the testatrix by way of the Will of her husband dated14.02.2001. The husband of testatrix expired on 20.10.2002. The appellant,married daughter of the testatrix, was admittedly living in differentlocality, that is, at Panchshila Park for 20-22 years, whereas son of thetestatrix, who was serving in Army, remained posted outside and waslastly residing in Shimla. The testatrix was cancer patient and wasunder regular treatment in an Army Hospital at Delhi. Significantly, thetestatrix was residing at the said ground floor portion of the building inquestion (which had already become property of the appellant by virtueof the gift by her father). The respondent No.1, the widowed daughterof the testatrix, was residing at the first floor of the same building withher own daughter. Admittedly, the said first floor of the house was theproperty of testatrix by virtue of the Will of her husband. It is not amatter of much dispute that respondent No.1, while living in the samebuilding, was taking care of the testatrix and was even taking her toArmy Hospital for treatment.

29.2. In the given set-up, basic question immediately crops upas to what could be the reason for the testatrix being desirous of providing

Aunequal distribution of her assets by giving major share to the appellantin preference to her other two children. The appellant has suggestedthat the parents had special affection towards her. Even if this suggestionis taken on its face value, it is difficult to assume that the alleged specialaffection towards one child should necessarily correspond to repugnancetowards the other children by the same mother. Even if the parents hadBspecial liking and affection towards the appellant, as could be arguedwith reference to the gift made by the father in her favour of the groundfloor of the property in question, it would be too far stretched and unnaturalto assume that by the reason of such special affection towards appellant,the mother drifted far away from the other children, including theCwidowed daughter who was residing on the upper floor of the samehouse and who was taking her care. In the ordinary and natural course,a person could be expected to be more inclined towards the child takinghis/her care; and it would be too unrealistic to assume that special loveand affection towards one, maybe blue-eyed, child would also result in person leaving the serving and needy child in lurch. As noticed, an unfairDdisposition of property or an unjust exclusion of the legal heirs, particularlythe dependants, is regarded as suspicious circumstance. The appellanthas failed to assign even wee bit reason for which the testatrix wouldhave thought it proper to leave her widowed daughter in the heap ofuncertainty as emanating from the Will in question.Equally, the suggestionEabout want of thickness of relations between the testatrix and her son(respondent No.2) is not supported by the evidence on record. The factsabout the testatrix sending good wishes on birthday to her son and joiningfamily functions with him, even if not establishing very great bondbetween the mother and her son, they at least belie the suggestion aboutany strain in their relations. Be that as it may, even if the matter relatingFto the son of testatrix is not expanded further, it remains inexplicable asto why the testatrix would not have been interested in making adequateand concrete provision for the purpose of her widowed daughter(respondent No.1).

29.3. The aforesaid factor of unexplained unequal distribution ofGthe property is confounded by two major factors related with making ofthe Will in question: one, the active role played by the appellant in theprocess; and second, the virtual exclusion of the other children of testatrixin the process. As noticed, an active or leading part in making of the Willby the beneficiary thereunder has always been regarded as aHcircumstance giving rise to suspicion but, like any other circumstance, it

could well be explained by the propounder and/or beneficiary. In thepresent case, it is not in dispute that out of the three children of testatrix,the appellant alone was present at the time of execution of the Will inquestion on 20.05.2003. As noticed, at the relevant point of time, theappellant was admittedly living away and in different locality for about20-22 years, whereas testatrix was residing at the ground floor of thebuilding and the respondent No.1 was at the first floor. Even if we leaveaside the case of the respondent No.2 who was living in Shimla, therewas no reason that in the normal and ordinary course, the testatrix wouldnot have included the respondent No.1 in execution of the Will in question,particularly when she was purportedly making adequate arrangementstowards the welfare of respondent No.1. In other words, if the Will inquestion was being made without causing any prejudice to the respondentNo.1, there was no reason to keep her away from this process.Admittedly, the Will in question was not divulged for about three years.Therefore, the added feature surrounding the execution of the Will hadbeen of unexplained exclusion of the respondent No.1 from the process.

29.4. Apart from the above, active participation of the appellantin making of the Will in question cannot be left aside as one of the minorfactors for the reason that the appellant indeed attempted to project aface of innocence by suggesting that the testatrix did not discuss the Willwith her; that she was not aware as to who drafted the Will and wherewas it typed; and that she came to know about the Will only on20/21.05.2003. The appellant even stated that she did not call the witnessesand that the testatrix herself might have called them. The witness PW-2 has clearly contradicted the appellant by deposing that on 18.05.2003,it was the appellant who invited him to her mother’s place. Thus, theappellant, by her conduct of attempting to avoid the fact that she wasaware of making of Will, at least two days before its execution, has onlystrengthened the suspicion arising because of her active participation inexecution of the Will while keeping the other children of the testatrixexcluded from the process.

29.5. Yet further, when we look at the Will in question itself andexamine the evidence adduced in regard to its execution, few morefactors of suspicion emerge on the face of the record.

29.5.1. In regard to the contents and frame of the document inquestion, learned counsel for the appellant has submitted that greaterdegree of presumption that arises in the case of “holograph” Will, as

Aenunciated in the case of Joyce Primrose Prestor (supra), is applicableto the present case too, where the significant contents relating to theparticulars of the person and bequeath, in the opening and concludingpassages, are duly written in her own hand by the testatrix. Thesubmissions so made on behalf of the appellant carry their ownshortcomings and demerits for the reason that the Will in question doesBnot directly answer to the description of “holograph” Will because,except for the opening and concluding passages, the entire Will is inelectronic print. The core of bequeathing part is also in print and not inhandwriting. In the case of Joyce Primrose Prestor, the entire Will washandwritten, which is not the case here. Coupled with this remains theCadmitted fact that even the handwritten portions are not of the diction ofthe testatrix herself. She had only copied them from note availablewith her; and it is apparent from the document that such handwrittenportions are jotted down on the base lines drawn on the paper.

29.5.2. Thus, practically, it was case of the testatrix merely

Dcopying, on the dotted lines, the text already given to her. The sanctityattached to bequeath in the handwriting of the testator presupposes aco-ordinated work of free hand and free mind, that is, the handwrites what comes out of and given by the mind. In the present case, itis difficult to be satisfied that what is found written in hand by the testatrixhad been dictated by her own mind so as to make it an expression of herEown free will.

29.5.3. Moreover, the handwritten portions carry such formal andlegal expressions like “testament” and “set and subscribed my hand”,which are the tools of the language employed by person who isconversant with legal format and requirements for execution of such aFdocument; and, ordinarily, layperson like the testatrix is not expectedto be conversant with them. The printed portion also carries theexpressions like “codicil”, “give, devise and bequeath”, which are notthe expressions of layperson. In the given circumstances, the want ofevidence as to who drafted the printed portion and the said note (forGcopying on the dotted lines) becomes an added factor towards suspicionas to whether the contents of the document in question are, in fact,expressive of the actual desire of the testatrix towards succession ofher property.

29.5.4. This set of suspicious circumstances concerning theHprocess of execution of the document in question reaches to impenetrable

finale by another major part of contradictions in oral evidence. Theappellant asserted in her testimony that the testatrix discussed the contentsof the Will with the attesting witnesses but both of them (PW-2 and PW-3) consistently maintained that the contents were not discussed withthem. Thus, the appellant has failed to clear the doubts as to whetherwhat is found written in the document in question (both by hand and inprint) carry and convey the last wish of the testatrix.

30. Going yet further, when the core contents of the document inquestion are examined, what we find is another load of several uncleardoubts and variety of uncertainties. We would hasten to observe that asper Section 81 of the Succession Act, if there is an ambiguity or deficiencyon the face of Will, no extrinsic evidence as to the intentions of thetestator shall be admitted. Thus, everything related with the true intentionof testatrix in the present case is to be gathered from the contents of theWill in question itself.30.1. As per the stipulation in Clause 1 of the bequeathing contents,the first floor, terrace and all other properties except the ground floorare given to the appellant with directions that she would carry out eitherof the two options as deemed proper, namely, either to construct on theterrace of the building such residential facility as may be permissibleunder the Municipal Building Bye-laws at the time of demise of thetestatrix and to hand over possession of the construction to respondentNo.1 while retaining terrace rights thereon; or in the alternative, todemolish the entire building and carry out such construction as may bepermissible under the Municipal Building Bye-laws and become exclusiveowner thereof, save and except that the highest floor of such buildingshall go to the respondent No.1, while again, the terrace rights shallremain with the appellant. At the first blush, it may appear as if by thesestipulations, the testatrix was duly taking care of the interests of respondentNo.1. However, closer look gives rise to manifold questions whichcarry no plausible answer.

30.2. In the said stipulations, neither any time frame is providedfor the appellant to carry out the expected construction nor the nature,quality and extent of such construction has been spelt out. It is also notclear as to what would happen in the event of the appellant not carryingout such construction, that is, as to whether she would stand divested ofthe property already bequeathed?

A30.3. Apart from all the aforesaid aspects, the fundamental factremains that none of the stipulations could have been legally made bythe testatrix, nor they could be enforced in any proceedings. This is forthe reason that nowhere in the document any provision has been madefor carrying out such construction out of the estate of the testatrix. Itremains questionable if the testatrix was entitled to issue such directionsBin the testament, which could have been executed only through theproperty of the legatee and not from her own estate?

30.4. Yet further, the stipulation in the alternative in sub-clause(b) of Clause 1 of the Will remains non-est on the face of the record.Admittedly, the ground floor of the building in question is the property ofCthe appellant for having been gifted by her father. The direction fordemolition of the entire building as contained in the said sub-clause (b)includes in it the direction to demolish the ground floor too. The testatrixcould not have given any such direction because that amounts to intrusioninto the property rights of the appellant in such manner so as to directDher to pull down her own property and lose value thereof and then, toinvest further by raising new construction.

30.5. Moreover, whether as per sub-clause (a) or as per sub-clause (b), if at all the appellant were to make any such construction asexpected, it would become her own property; and the question wouldEyet remain as to how the respondent No. 1 shall enforce conveyance ofthe appellant’s title to herself?

30.6. It remains trite that no one can convey better title thanwhat he had; as expressed in the maxim: ‘Nemo dat quod non habet’[9].The testatrix never had any right over the property belonging to theFappellant and could not have conveyed to the respondent No.1 anyproperty which was of the ownership of the appellant or which might beacquired or raised by the appellant in future by her own funds. On thisground alone, the Will in question is required to be considered void as perSection 89 of the Succession Act, when the principal bequeathingstipulation in the Will suffers from uncertainty to the hilt.

30.7. close look at the Will in question brings forth yet anotherinteresting, nay disturbing, feature of its contents. Whilst in the first

9 See, for example, Narinder Singh Rao v. Air Vice-Marshal Mahinder Singh Rao &Ors.: (2013) 9 SCC 425, where the testatrix had bequeathed property in excess to hershare and this Court held that the bequest has to be treated only to the extent of theHshare held by the testatrix.

alternative in sub-clause (a) of Clause 1 of the bequeathing part of theWill, the testatrix expected that the appellant shall construct “residentialfacility ofsuch covered area as is permissible under the MunicipalBuilding Bye-laws at the time of my demise”, whereas, in sub-clause(b) thereof, the testatrix provided the alternative that the appellant shallcarry out new construction “as is permissible under the MunicipalBuilding Bye-laws”. The expression “at the time of my demise”, asoccurring in sub-clause (a) does not occur in sub-clause (b). Now, itremains elementary that if construction is to be raised, it has to conformto the Building Bye-laws or Regulations as in force and as applicable atthe relevant time of construction. The testatrix could not have overriddenthe operation of law by providing that the construction could be raised aspermissible under the Bye-laws at the time of her demise. If that wasnot the meaning of sub-clause (a), then it remains questionable as towhy the expression “at the time of my demise” at all occurred thereand the question further remains as to why the same was omitted in sub-clause (b)?

30.8. Therefore, literal reading of the Will in question makes itclear that the purported provision for the respondent No.1 is illusory andan eye wash because on the practical side, the provision is inexecutableand unenforceable; and the respondent No.1 is not likely to get anythingthereunder.

31. In the ultimate analysis, we are satisfied that the Will in questionis surrounded by various suspicious circumstances which are material innature and which have gone unexplained. The cumulative effect of thesesuspicious circumstances is that it cannot be said that the testatrix wasaware of and understood the meaning, purport and effect of the contentsof the Will in question. The appellant, while seeking probate, has not onlyfailed to remove and clear the aforesaid suspicious circumstances buthas even contributed her own part in lending more weight to each andevery suspicious circumstance. The Will in question cannot be probatedfrom any standpoint.

The curious case of alleged third page of the Will

32. For what has been discussed hereinabove, it is but evidentthat the Will in question is besieged by multiple suspicious circumstances,which have not been cleared; rather every suspicious circumstance ismore baffling than the other. Even this is not the end of the matter.

A33. There remains yet another, and perhaps the most confoundingpart of the matter, which leaves nothing to doubt that the prayer forprobate of the Will in question could only be declined. It is the curiouscase of alleged third page of the Will in question and the vacillating standof the appellant in that regard. This aspect, perforce, needs littleelaboration as infra.B

33.1. As noticed in the preceding paragraph 13 and its sub-paragraphs, during the course of trial, on 24.03.2008, the respondentNo. 1 moved an application under Section 151 CPC seeking opportunityto further cross-examine the appellant. In this application, the respondentNo. 1, inter alia, attempted to raise plea relating to the alleged thirdCpage of the Will in question. This application was rejected by the TrialCourt on 25.03.2008, interalia, with the observations that the story ofthis third page, as coming on record for the first time cannot be believed,particularly when nothing in that regard was asked in the cross-examination of PW-1.

33.1.1. Thereafter, the respondent No. 1 filed another applicationseeking permission to file her written statement and seeking condonationof delay. Again, the respondent No. 1 attempted to refer to the said thirdpage of the Will, inter alia, with the following submissions:-

“4. The Respondent No. 2 submits that due to her lack ofEknowledge about the existence of the third-page of the purportedWill and being all through assured by the Petitioner that theRespondent No. 2 would get her share as per Will, the RespondentNo. 2 did not file objections at the initial stage.

5. The Respondent No. 2 submits that the purported Will in questionFwas lying in the custody of the Petitioner and she can only giveproper clarification and explanation about the handwritten portionthereon and with regard to the third-page of the said Will, whichthe Petitioner did not produce before this Learned Court withsome ill-motive.”GIn reply to the aforesaid part of the application, the presentappellant stoutly denied the existence of any third page of the Will and,inter alia, submitted as under:

“4. That para No. 4 of the application is wrong and hence denied.It is denied that there is any third page of the Will, as alleged or otherwise.HThis Hon’ble Court has already dealt with this false contention of the

Respondent No. 2 vide its order dated 11.04.2008. Even the perusal ofthe Will clearly reveals that the Will is in two pages. The averments tothe contrary are absurd, frivolous and devoid of any merits. It may beappreciated that the Respondent No. 2 admits that the Will, that is, thesubject matter of the present petition, but owing to her malafide intentionsis now seeking to take self contradictory stand, which is not permissibleunder law. It may be appreciated that the Respondent No. 2 is aneducated lady and the averments with regard to lack of any knowledgeetc., is wrong and hence denied. It is denied that the Petitioner has givenany such assurances, as alleged or otherwise.”

The application so filed on behalf of respondent No. 1 and anotherapplication filed on behalf of respondent No. 2 under Order IX Rule 7CPC were decided together by the Trial Court in its order dated03.07.2008, inter alia, with the observations that, ‘the alleged 3[rd] pageappears to be some another document and prima facie it is notcertainly 3[rd] page of the Will’.

33.1.2. Yet again, an application filed on behalf of respondent No.2 under Order XI Rule 12 and 14 CPC seeking production of the samealleged third page of the Will was rejected by the Trial Court by its orderdated 23.08.2008, inter alia, with the observations that the respondentNo. 2 had described the entire Will as forged and fabricated so he ‘cannotbe allowed to take contradictory stand that the third page isgenuine and other two pages are forged’. The Trial Court alsoobserved that the claim of the appellant was only in respect of oneimmovable property and one bank account and no claim had been madein respect of any movable property. The Trial Court further went on toobserve that ‘even if it is presumed that deceased during her lifetime distributed her personal belongings, cash and jewellery inaccordance with the third page then also that third page has nowbecome useless because the distribution of the movable assets tookplace during life time of the deceased whereas the Will has to takeeffect after the death of the testatrix.’

33.2. Thus, in the Trial Court, at late stage, the respondentsattempted to suggest, rather persist, with the submission that there hadbeen third page of the Will but this suggestion was specifically deniedby the appellant even with the allegation that the said third page hadbeen fabricated by the respondents. The Trial Court accepted thesubmission of the appellant to the extent that no such third page existed.

AThe Trial Court even observed that distribution of movable assets oftestatrix was complete during her lifetime and the only subject-matterremaining was the immovable property and the bank account.

33.3. In continuity with what has been observed hereinabove, wemay also add that prima facie, the suggestion about any such third pageBof the Will made by the testatrix appears doubtful because the Will isquestion is drawn up in two pages; the testatrix has specifically writtenin her own hand that the Will is so made in two pages; and the documenteffectively ends at the bottom of the second page with signatures oftestatrix and two attesting witnesses.

C33.3.1. However, all the observations and findings of Trial Court(as regards the alleged third page of the Will in question) and even theprima facie impression given by the document Ex.PW1/H againstexistence of any such third page of Will are shaken to the core when wetake into account the strange turnabout and volte-face of the appellantin the High Court, where it was asserted on her behalf that she hadDindeed acted as per the “directions” of the testatrix in the said thirdpage!

34. The above-noted strange shift in stand of the appellant, whereshe asserted having acted as per the said third page had its ownbackground. As noticed, during the course of trial, fact surfaced thatEbefore filing the petition for probate, the appellant had made payment ofa sum of Rs. 25,000/- to the daughter of the attesting witness PW-3; andthe Trial Court even observed that the possibility of this witness beingbribed was not ruled out. This very aspect was seemingly pressed againbefore the High Court by the respondents. While countering suchFcontentions made on behalf of the respondents as also while assertingthat the respondent No. 1 was not fair in her conduct, the appellantasserted before the High Court that though this third page was creationof the respondents but, she (the appellant) had acted according to thedesire of the testatrix as stated in the said third page. It was specificallystated on behalf of the appellant that payments were made by way ofGfour cheques, in the sum of Rs. 25,000/- apiece, in favour of the daughterof PW-3, the daughter of the respondent No. 1 and two sons of her own(the appellant) ‘in compliance with the directions in the said “3[rd]page”, which is separate directive of the deceased de hors theWill’. It was further asserted on behalf of the appellant that she hadH‘faithfully acted upon the directions’ set out in the said third page andhanded over the car to the daughter of respondent No. 1 and even gave

the jewelleries to the respondent No. 1 herself! It was sought to beargued on behalf of the appellant that the said third page rather provesthe validity of the Will in question.

34.1. What has been noted hereinabove, being the entirelydifferent stand of the appellant regarding the said third page, is specificallyfound in the written arguments filed on her behalf in the High Court. Therelevant part of such written arguments may be usefully extracted asunder:-

“1. That in the first place there is no challenge from either of the2 Respondents to the signatures and the hand writing of theTestatirix on the Will; indeed there is sufficient admission of thevalidity of the Will in the following manner:

ADMISSIONS

(a) Respondent No. 2 files no objections to the Probate Petition.

(b) Respondent No.2, who had been granted the license to residein the suit property, clandestinely attempts its alienation, constrainingthe Petitioner to file suit for injunction (Annexure A-14 onpage 176 — please see page 181 for the prayer), as per legaladvice received as against an Application for restraint in theProbate Petition itself.

Respondent No.2 retaliates by committing volte face and filingan Application for permission to further cross examine thePetitioner with regard to (i) the holograph portion of the Will, (ii)the existence of third page to the Will, (iii) doubting the fatherhoodof the Petitioner and (iv) establishing the extent of her rights inthe suit property under the Will.

The Application is dismissed vide Order dated 25.03.2008(Annexure A-7 on page 93) but the flip-flop stands of theRespondent No.2 may be noted to deny any credence to hercontradictory submissions in the instant Appeal and the contentionof the existence of 3[rd] page to the Will tantamounting to theadmission of the validity of the 2 paged Will propounded by thePetitioner.

The so called “3rdpage” is Annexure A-8on page 97, whichdoes not form part of the Will but was signed separately by the

ATestatrix and has indeed been acted upon to the benefit of, amongstothers, Respondent No.2 herself and her daughter.

It is not comprehensible as to how then the Respondent’s challengethe Petitioner’s issuance of the 4 Nos. cheques,all in the sums ofRs.25,000/- apiece favouring Gen. Ahluwalia’s daughter,BRespondent No.2’s daughter and the Petitioner’s 2 sons incompliance with the directions in the said “3rdpage”, which is aseparate directive of the deceased de hors the Will.

Also in compliance with the said directives the Respondent No.2’sdaughter has been given the car belonging to the deceased by theCPetitioner after the demise of the deceased.************

12. That at the hearing R-3 relies upon litany of FALSEHOODSin order to advance her case against the Will, as set out hereunder:

13. That at the hearing, R-2, taking leaf out of R-3’s book, reliesupon further litany of FALSEHOODS in order to advance hercase against the Will, as set out hereunder:

Sr.No.Submissions at the BarManifest Falsehood***(iv) The Petitioner’s distribution The false allegation is bellied by the of moneys and other movable so-called “3[rd] page” of the Will assets left behind by the propounded by R-2 & R-3 and the Testatrix arouses suspicion Petitioner has made the various that she was either “buying payments and disbursed various out” Respondent No.2 and movables after the demise of the one of the attesting witnesses Testatrix faithfully in terms of the or misappropriating the joint said page which was duly signed by bank account held by the the Testatrix but did not form part Testatrix with the Petitioner. of the “2 paged Will” or can be deemed to be codicil but the Petitioner honoured the dictate of the Testatrix as set out on piece of paper signed by her.*********”

(underlining supplied for emphasis)

34.2. In paragraph 49 of the impugned judgment, the High Courtnoticed such stand of the appellant, seeking to rely on the very samedisputed third page of the Will and observed that this third page wasnever produced by the appellant; rather when the respondent No. 2sought its production, the appellant denied the same. The High Courtalso observed that the said third page of the Will was never provedbefore the Trial Court; and even if it was assumed to be existing, thesuspicious circumstances were not dispelled.35. In our view, though the High Court has rightly observed thateven if this third page is assumed to be existing, it does not remove thesuspicious circumstances but the High Court has stopped short of goinga little further and has not noticed that volte-face of the appellant regardingthis third page tilts the preponderance of probabilities heavily, ratherconclusively, against her. Noteworthy it is that the said third page hasnot been exhibited in evidence. The flip-flops of the appellant regardingthis third page compels us to examine several of the possibilitiesconcerning other assets of the testatrix.

35.1. As noticed, the Will in question (Ex.PW1/H) is drawn ontwo pages and is complete in itself and does not leave any scope for anyother codicil concerning the estate of the deceased, particularly whenbequeath has been made not only of the immovable property and thebank account but also as regards the other assets of testatrix in theresiduary clause, which reads as under: –

A“2. I also direct that in the event of my acquiring any furthermovable or immovable assets hereinafter or any other assets thatI may have forgotten to mention in the present Will the same shalldevolve upon my daughter Mrs. Kavita Kanwar.”

35.1.1. Now, from the evidence on record and from the stand ofBthe appellant, there is little to doubt that there had been several otherassets of the testatrix apart from the said immovable property and thebank account. By virtue of the aforesaid residuary clause, all such otherassets are bequeathed to the appellant. In the given scenario, two seriousquestions perforce acquire immediate attention. One that while makingthe application seeking probate, the appellant did not divulge all otherCassets which were to come in her hands by virtue of the said residuaryclause of the Will in question[10]. Secondly, when there had not been anydirection in the two page Will in question for making payment to anyoneor parting with any movable to anyone, what had been the reason for theappellant making payment to different persons, including her own sons,Dthe daughter of the attesting witness and the daughter of the respondentNo. 1 apart from giving car to the daughter of the respondent No. 1 andjewelleries to the respondent No. 1 (as alleged in the written submissionsbefore the High Court). Both these questions on the conduct of theappellant only thicken the suspicious circumstances surrounding the Willin question.E

35.2. On the other hand, as soon as the possibility of existence ofsuch third page carrying the desire and directions of the testatrix aboutdistribution of her other movable property is taken into account[11], thedocument Ex.PW1/H loses all its worth because it cannot be said thetestatrix executed the same after understanding the meaning and purportFof its contents. If she had the desire of distribution of movable propertyin different manner and to different persons (as alleged by the appellantbefore the High Court), the aforesaid residuary clause would not haveoccurred in the Will in question at all. Secondly, if it is assumed that thetestatrix issued separate directions about distribution of her assets deGhors the Will then, the Will in question ceases to be her last Will.

10 In paragraph 8.2 hereinbefore, we have reproduced the major contents of theapplication seeking probate with its Annexure-B wherein, only the said immovableproperty and the amount lying in the bank account were stated; and in paragraph 12 ofthe application, the appellant mentioned the immovable property as the only assetlikely to come in her hands with the referred stipulations.H11 As per the submissions made before the High Court, the appellant indeed carried outthe directions contained in such third page of the Will.36. Hence, to cap all the suspicious circumstances, the aforesaidequivocal stand of the appellant, as regards the third page of the Will andher assertion of having acted in accordance with the “directions” in thesaid third page of the Will, effectively knocks the entire case of theappellant down to the bottom. The suspicions arising because of thefacts and factors noticed hereinbefore, including the unnatural exclusionof the respondents from estate; uncertain and rather inexecutablestipulation about construction by the appellant for the purpose of therespondent No.1; active role played by the appellant in execution of theWill and yet seeking to avoid the factum of her role by incomplete andvague statements; and the witnesses having contradicted the appellanton material particulars etc., have not only gone unexplained but areconfounded beyond repair with such vacillating stand of the appellantregarding the said third page of the Will of the testatrix.

Summation

37. The discussion foregoing is sufficient to find that thick cloudsof suspicious circumstances are hovering over the Will in question whichhave not been cleared; rather every suspicious circumstance isconfounded by another and the curious case of the alleged third page ofthe Will effectively and completely demolishes the case of the appellant.Put differently, it is difficult to be satisfied that what is literally comingout of the document in question had been the last wish and desire of thetestatrix as regards succession of her estate. On the contrary, we findenough and cogent reasons to affirm the material findings of the TrialCourt and the High Court that it cannot be said that the testatrix executedand signed the document in question as her Will after having understoodthe meaning, effect and purport of the contents.

38. The result, inevitable, is that this appeal deserves to bedismissed. With the concurrent findings having been affirmed and whenthe appellant is found wanting in forthrightness at various stages ofproceedings, costs ought to follow the result of dismissal of this appeal.

Conclusion

39. Accordingly, and in view of the above, this appeal fails and is,therefore, dismissed with costs quantified at Rs. 50,000/- (rupees fiftythousand), payable by the appellant equally to the respondent No. 1 andrespondent No. 2.

Ankit Gyan

Appeal dismissed.