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High Court Of Delhi
TILAK RAJ KAKKAR - Appellant
Versus
SHAMBHU NATH KAKKAR - Respondent
F.A.O. 16 of 1972
Decided On : 11/26/1986
WILL - PROBATE - EXECUTION AND GENUINENESS - SUSPICIOUS CIRCUMSTANCES - FACTORS IN FAVOUR OF GENUINENESS - PROBATE GRANTED.
Fact of the Case:
Petitioner sought probate of a will allegedly executed by his sister, Ajaib Kaur, bequeathing all her properties to him. Respondent, another brother of the deceased, contested the execution and genuineness of the will, alleging suspicious circumstances surrounding its execution.
Finding of the Court:
The court found that there were suspicious circumstances surrounding the execution of the will, including the petitioner's failure to examine the lawyer who drafted the will, the absence of evidence regarding instructions for drafting the will, the deceased's inability to understand English, and the petitioner's prominent role in the execution of the will. However, the court also noted factors in favor of the genuineness of the will, including a "no objection" affidavit by another brother of the deceased, the attestation of the will by six witnesses, and the deceased's maintenance from her deserting husband.
Issues: 1. Whether the suspicious circumstances surrounding the execution of the will were sufficient to invalidate it. 2. Whether the factors in favor of the genuineness of the will outweighed the suspicious circumstances.
Ratio Decidendi: The court held that the factors in favor of the genuineness of the will, particularly the "no objection" affidavit and the attestation by six witnesses, outweighed the suspicious circumstances. The court reasoned that a forger would not normally involve more persons than the minimum requirement of law and would not expose themselves to the risk of being let down by multiple witnesses. The court also found that the deceased's ailment of rheumatic pains did not affect her mental faculties and that she had a sound disposing mind when she executed the will.
Final Decision: The court allowed the appeal, set aside the lower court's judgment, and granted probate in favor of the petitioner.
( 2 ) PETITIONER/appellant Tilak Raj Kakkar and respondent No. 1 Shambhu Nath Kakkar and respondent No. 2 Vishwa Nath Kakkar are all brothers. The originally impleaded respondent No. 4 Smt. Sumitra Devi was their mother whose name was struck off by the trial Court from the array of the respondents in the petition on 1st Nov. , 1968 on account of her death during the pendency of the petition before the service therein.
( 3 ) THE appellant Tilak Raj Kakkar went to England a few months after the alleged execution of the aforesaid will Ext. P-2 and during the case was represented by his Special Attorney Kamaljit Singh PW 3. Two witnesses Prem Nath Matik PW 1 and B. N. Sehgal PW 2 were also examined on behalf of the appellant and they made depositions for the purpose of proving the execution of the Will by the deceased Smt. Ajaib Kaur in their presence stating that Ajaib Kaur admitted the contents of the Will to be correct and put her signatures on both the pages of the same in their presence and they along with four others attested the Will at the same time in her presence. They also stated that the typed draft of the Will was brought in their presence by a lawyer.
( 4 ) ON the other hand, it was Vishwa Nath respondent No. 2 alone who disputed the execution and genuineness of the Will and examined three witnesses besides himself and according to them Ajaib Kaur alias Bimla deceased was a disabled person incapacitated to walk due to rheumatic pains and had been deserted by her husband and that the deceased lived with Vishwa Nath in his house and that she was maintained by Vishwa Nath and that even her last rites were also performed by Vishwa Nath.
( 5 ) THE learned District Judge was of the view that there were some suspicious circumstances surrounding the execution of the Will and from the perusal of the impugned judgement the same can be pinpointed as under :-
(A) The petitioner did not examine the lawyer who had drafted the Will and there was further no evidence as to under whose instructions the Will was drafted by that lawyer; (b) The appellant did not examine the remaining four attesting witnesses of the Will; (c) The Will is in English and the deceased Ajaib Kaur did not know English and she could only sign in Hindi, even though the PWs had deposed that the lawyer had readover and explained the Will to her and she had admitted the contents thereof and signed the same on each page; (d) Both the witnesses viz. Prem Nath Malik PW 1 and B. N. Sehgal PW 2 are the friends of the petitioner; (e) The petitioner had taken prominent part in the execution of the Will; (f) There was no evidence on the record that the petitioner had been serving the deceased either before or after the alleged execution of the Will or sent to her money for her maintenance, and did not come to India during the remaining six years of her life after the execution of the Will, while on the other hand, the first two witnesses Amolak Singh PW 1 and Sher Singh PW 2 witnesses of Vishwa Nath respondent had deposed that Vishwa Nath used to incur the expenses on the maintenance of the deceased and also performed her last rites. (g) There was no reason at all for the deceased to have made this Will bequeathing all her properties in favour of the petitioner ignoring her other brothers Shambhu Nath and Vishwa Nath, and that the statement of Prem Nath Malik PW 1 in cross-examination that they had asked Ajaib Kaur as to why she was giving her properties to the petitioner and not to other brot
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