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IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SAHAI ENDLAW, J.
Ashok Baury - Petitioner
Versus
State - Respondent
Test.Cas. 11 of 2018
Decided On : 13-03-2021
Code of Civil Procedure, 1908 – Order XIV Rule 5 – Indian Succession Act, 1925 – Section 59 – Contract Act – Section 12 – Indian Evidence Act – Sections 101, 111, 114 – Will – Execution – State of Mind – Whether the deceased was not of sound disposing state of mind and thus the document even if executed by her, is not her Will – Vide order inter alia issues were framed in the Test., with issue no.(ii) being “Whether the deceased Bhagwanti Devi, was not of sound disposing state of mind and thus the document even if executed by her, is not her Will? OP (Relatives 10, 11 & 12)” and the contention of the senior counsel for the Relation no.10 that the onus of the said issue should be on the petitioner, was rejected reasoning that it is for the person disputing the soundness of mind to establish the same, with the petitioner having a right of rebuttal; else, the presumption is, of soundness of mind of a living person.
Findings of Court:
Court is exercising in the subject case, as distinct from a judgment/order inter parties i.e. binding the parties to the lis alone and not others, is a judgment/order in rem, which establishes a document propounded as a Will as the Will from the death of the testator and renders valid all intermediate acts of the executor as such. – A Testamentary Court is thus a Court of conscience. Since the said judgment/order binds not only the parties to the proceeding but also others, the Court, in exercise of such jurisdiction, requires proof in accordance with law of the document propounded as a Will, even if not opposed by the near relatives of the deceased. – However when the near relatives have contested the document propounded as a Will and which contest is not a sham or make belief, the Court can mould the trial by placing the onus appropriately in terms of the pleadings and the documents in a case. – In the facts of the present case the applicant/Relation No.10 in his pleadings has not pleaded any fact to dislodge the presumption in law of soundness of mind and has rather, by pleading that the testatrix used to sign and was under influence of the petitioner affirmed the said presumption and to in such state of pleadings still place the onus on the petitioner, rather than benefitting the applicant/Relation No.10 will lull him into complacency and not enable him to take advantage of the issue struck qua soundness of mind, by at least now bring evidence if any in his possession of unsoundness of mind of testatrix, even though his denial in the pleadings to the said effect, is evasive and dilatory. – It is not the case of the applicant/Relation No.10 Arun Sood that he was not in a position to know about the soundness of mind of the testatrix or was far removed from the testatrix; on such pleading it can perhaps be said that the petitioner should discharge the onus. – In the facts of that case, in the absence of a suggestion that the testator was feeble minded or so completely deprived of his power of independent thought and judgment, presumption was drawn and the Will held to be genuine – No ground for review of the order, to the extent placing the onus of issue no.(ii) on the petitioner, is made out.
Result: Application Dismissed
JUDGMENT :
[VIA VIDEO CONFERENCING]
IA No.3621/2020 (under Order XIV Rule 5 of the CPC).
1. Finding this application, though titled as under Order XIV Rule 5 of the Code of Civil Procedure, 1908 (CPC), to in effect seeking review of my order dated 25th November, 2019, the Roster Bench has directed this application to be placed before me.
2. Vide order dated 25th November, 2019, inter alia issues were framed in the Test. Cas.11/2018, with issue no.(ii) being “Whether the deceased Bhagwanti Devi, on 5th May, 1983, was not of sound disposing state of mind and thus the document even if executed by her, is not her Will? OP (Relatives 10, 11 & 12)” and the contention of the senior counsel for the Relation no.10 Arun Sood that the onus of the said issue should be on the petitioner, was rejected reasoning that it is for the person disputing the soundness of mind to establish the same, with the petitioner having a right of rebuttal; else, the presumption is, of soundness of mind of a living person.
3. The Relation no.10 Arun Sood has filed this application pleading that (a) he had preferred a SLP(C) No.5603-04/2020 challenging the order dated 25th November, 2019, to the extent placing the onus of issue no.(ii) on him and which SLP was disposed of with liberty to him to make a formal application and request this Court to reformulate the issue no.(ii); (b) this application is being filed in pursuance thereto; (c) the onus to, in the first instance show that the testatrix was of a sound disposing mind i.e. had the testamentary capacity to execute the Will, is on the propounder of the document claimed to be the Will; (d) only if the propounder of the document, claimed to be the Will, establishes the testamentary capacity of the testator/testatrix, does the document stand proved as the Will; (e) the petitioner also in the issues proposed by him had placed onus of the said issue on himself; and, (f) one who asserts, has to prove and the other cannot be called upon to prove the negative.
4. The counsel for the applicant/ Relation no.10 Arun Sood has referred to Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao, (2006) 13 SCC 433 (Paras 32 and 33), Savithri Vs. Karthyayani Amma, (2007) 11 SCC 621, Sridevi Vs. Jayaraja Shetty, (2005) 2 SCC 784 and Budh Singh Vs. Raghubir Singh, 2015 SCC OnLine Del 14528 (Paras 20 to 23) in support of his contention. On the contrary the counsel for the petitioner/non-applicant has referred to Naveen Bhatia (Since Deceased) through his Lrs. Vs. Raj Kumari Bhatia, 2017 SCC OnLine Del 9724.
5. I have considered the controversy.
6. Section 59 under Chapter II titled “Of Wills and Codicils”, of Part VI titled “Testamentary Succession”, of the Indian Succession Act, 1925, provides that every person of sound mind not being a minor may dispose of his property by Will. Explanation 1 thereto provides that a married woman may dispose by Will any property which she could alienate by her own act during her life. Explanation 2 thereto provides that persons who are deaf or dumb or blind are not thereby incapacitated from making a Will if they are able to know what they do by it. Explanation 3 thereto provides that a person who is ordinarily insane may make a Will during an interval in which he is of sound mind. Explanation 4 thereto provides that no person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
7. Section 63 under Chapter III titled “Of the Execution of Unprivileged Wills” in Part VI supra of the Indian Succession Act provides that every testator shall execute his Will according to the Rules provided therein. The said Rules provide that (a) the testator shall sign or affix his mark to the Will; (b) the signature or mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will; and, (c) the Will shall be attested by two or more witnesses, each
SupremeToday
Succession - Will - Soundness of mind - onus of proof of soundness of mind being on the propounder, are general in nature and in the facts of the concerned case. The question of onus of proof as to ....
The mere presence of beneficiaries during will execution is not sufficient to invalidate it; the burden of proving suspicious circumstances lies with the challengers.
The presumption of execution and attestation of a 'WILL' over 30 years old can be drawn under Section 90 of the Indian Evidence Act if produced from proper custody.
The central legal point established in the judgment is the scrutiny of Will execution, consideration of suspicious circumstances, and the burden of proof on the propounder.
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