The main legal point established in the judgment is that the due execution of a Will should be analyzed in light of the legal requirements under the Indian Succession Act and the Evidence Act, and small discrepancies should not be exaggerated into suspicious circumstances.

MR. JUSTICE S. RAVINDRA BHAT

1. This appeal is preferred against the order of a learned single judge which disregarded a Will propounded by Benu Puri. She complains that the impugned judgment is in error because the Will of late Sita Kashyap (the testatrix, her maternal aunt) had been proved in accordance with law.

2. The antecedents material to this appeal at hand concern a partition suit, where the plaintiffs were two sisters, (Sita Kashyap and Leela Puri). The defendants arrayed were Harbans Kashyap (brother) and the legal representatives (LRs) of their deceased brother Jagdish Chander Kashyap. A preliminary decree of partition of property No. 5A, Guru Gobind Singh Marg, New Rohtak Road, Karol Bagh, New Delhi was passed by a learned single judge of this court on 10.05.2007, holding each party (i.e the two sisters each and their two brothers) having one-fourth undivided share in this property. Subsequently, a final decree of partition was passed on 19.11.2007, directing sale of the said property by public auction; the parties entitled to bid therein to the exclusion of their shares.

3. After the final decree, Sita Kashyap died and the applicant Benu Puri, who is the daughter of Leela Kashyap sought substitution in her (Sita Kashuyap’s) place on the basis of a Will dated 14.06.2004. The defendants disputed the said Will. The applicant/Appellant Benu Puri examined herself as PW1 and relied on the testimonies of two witnesses Vaneeta Kapoor,(PW2) and Mr. Naveen Kumar Jaggi, (PW-3, who drafted the said Will). Harbans Kashyap the first defendant examined himself as D1/W1. No evidence was led by the second and third defendants (LRs of deceased brother Jagdish Chander Kashyap).

4. The learned single judge rejected the appellant’s application for substitution in place of Sita Kashyap as her heir. The reasons that led to the learned single judge to conclude that the appellant failed to prove the Will as genuine and executed in accordance with law was five fold. The first reason concerned, the manner in which it was produced i.e. its knowledge vis-à-vis the appellant. Second, the learned single judge felt that the materials on record disclosed that the testatrix was aged and more importantly infirm since she had developed cataract and was unable to see. Consequently he concluded that the Will was not the result of exercise of free choice and volition and rather was the outcome of undue influence and mental coercion on her mind influenced by the beneficiary i.e. the appellant. The third important reason was a discrepancy in the dates. Whereas one of the dates on the document showed that it was executed on 14th of June 2004, the other date on the Will was 15th of June 2004. There were two sets of attesting witnesses and according to the learned single judge, those deposed that the Will was duly proved on 15th of June 2004 did not inspire confidence. The fourth circumstance was that the testatrix was inaccurate about her own age, which lent a high degree of improbability as to its due execution and further, that the testatrix was unaware about the extent of her estate, particularly what her movable possessions were. The fifth and last circumstance which led to the learned single judge to suspect the due execution of the Will , was the suspicion that the propounder, i.e. the appellant in all likelihood had played an important role in its execution. All these constituted suspicious circumstances, which led the court to disbelieve that the Will was not free from suspicion.

Contentions of the parties

5. Learned Counsel for the appellant submitted that the single judge fell into error in concluding that the testatrix was unaware as to the extent of her estate and made dispositions of properties of which she was not an owner or did not exist. It was contended that the fact that the testatrix was of sound discretion and mental disposition – in no way was undermined by the fact that she suffered from cataract. It was submitted that PW