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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Ajay Mohan Goel, J.
Shri Jeewan Kumar Khanna – Appellant
Vs.
The General Public and Others – Respondents
RFA No. : 23 of 2016
Decided On : 14-12-2017
Probate Petition - Will - Indian Succession Act, 1925 - [Section 63 of the Indian Succession Act, 1925] - The court allowed the probate petition, holding that the Will was not shrouded with suspicious circumstances and the propounder had successfully discharged the initial onus of proving the genuineness of the Will. The court found that the absence of a date on the Will did not render it suspicious as the month and year of execution were mentioned, and the Will was later registered. The court also held that discrepancies in the witnesses' statements were not significant enough to cast doubt on the Will's authenticity. The court further noted that the adverse inference drawn from the mention of the petitioner's sisters as relatives in the probate petition was unwarranted. The court emphasized that the onus was on the respondents to prove that the Will was forged and fabricated, which they failed to do. The judgment of the lower court was set aside, and the probate petition was allowed.
Fact of the Case:
The appellant filed a Probate Petition for probate of a Will executed by his mother in his favor. The respondents, who were the appellant's sisters, contested the petition, alleging that the Will was forged and fabricated.
Finding of the Court:
The court found that the Will was not shrouded with suspicious circumstances and the propounder had successfully discharged the initial onus of proving the genuineness of the Will. The court held that the absence of a date on the Will did not render it suspicious, and discrepancies in the witnesses' statements were not significant enough to cast doubt on the Will's authenticity. The adverse inference drawn from the mention of the petitioner's sisters as relatives in the probate petition was unwarranted. The onus was on the respondents to prove that the Will was forged and fabricated, which they failed to do.
Issues: The issues included the authenticity of the Will, the presence of suspicious circumstances, and the propounder's ability to discharge the initial onus of proving the genuineness of the Will.
Ratio Decidendi: The court emphasized that the onus was on the respondents to prove that the Will was forged and fabricated, which they failed to do. The court held that the absence of a date on the Will did not render it suspicious, and discrepancies in the witnesses' statements were not significant enough to cast doubt on the Will's authenticity.
Final Decision: The judgment of the lower court was set aside, and the probate petition was allowed.
Ajay Mohan Goel, J.
By way of this appeal, the appellant has challenged the judgment, dated 01.09.2015, passed by the Court of learned Additional District Judge-II, Shimla in Probate Petition No. RBT-3-S/2 of 2014/11, vide which, learned Court below has dismissed the Probate Petition so filed by the present appellant.
2. Brief facts necessary for the adjudication of the present appeal are that the appellant/petitioner (hereinafter referred to as ‘the petitioner’) filed a Probate Petition for probate of Will dated July 1984 executed by his mother late Smt. Ram Chameli Khanna, widow of late Sh. Badri Nath Khanna in favour of the petitioner. As per the petitioner, his mother late Smt. Ram Chameli Khanna died on 30.03.2011. In her lifetime, she had executed her last will in the month of July, 1984, which was duly registered by her in the office of Sub-Registrar, Shimla on 26.06.1985. By virtue of the said Will, late Smt. Ram Chameli Khanna had bequeathed her entire immovable and movable properties and other tangible assets left by her at the time of her death in favour of the petitioner, who was to hold the said property in his capacity as an absolute owner thereof. It was further mentioned in the petition that at the time of her death, Smt. Ram Chameli Khanna was residing with the petitioner at Lower Bazaar Shimla. It was further stated in the petition that the Will was executed by Smt. Ram Chameli Khanna in a sound state of mind out of her own desire and without any pressure. Present respondents, who were impleaded as respondents No. 2 and 3 in the Probate Petition and who happen to be the real sisters of the petitioner and daughters of deceased Smt. Ram Chameli Khanna, were stated in the petition not to be entitled to the immovable as well as movable properties of lat Smt. Ram Chameli Khanna.
3. As per records, respondent Smt. Anita Khanna was proceeded against ex parte, as she did not appear before the learned Court below, whereas probate petition was contested by respondent No.
4. In her reply filed to the petition, the stand taken by respondent No. 2 inter alia was that Smt. Ram Chameli Khanna was not only petitioner’s mother, but she was also the mother of replying respondent as well as respondent No. 3, which fact had been concealed by the petitioner. It was further mentioned in the petition that no Will was ever prepared by Smt. Ram Chameli Khanna during her life time in the month of July, 1984. As per the replying respondent, Smt. Ram Chameli Khanna during her life time used to visit the replying respondent occasionally and also used to stay with respondent No. 3 and she never disclosed about the execution of the Will in favour of the petitioner. It was specifically mentioned in the reply that no Will was ever prepared by Smt. Ram Chameli Khanna during her life time in favour of the petitioner and that the petitioner had prepared a false Will and was trying to grab the property of late Smt. Ram Chameli Khanna on the strength of the said forged and fabricated document, which was prepared by the petitioner to deprive the replying respondent and respondent No. 3 of their legitimate right.
5. On the basis of pleadings of the parties, the following issues were framed by the learned trial Court on 16.08.2012:
“1. Whether the applicant is entitled for probate of Will dated July 1984 executed by his mother late Smt. Ram Chameli, S/o late Sh. Badri Nath, as alleged? OPA
2. Whether the petition is not maintainable, as alleged? OPR-2
3. Whether the applicant has no cause of action to file the petition, as alleged? OPR-2
4. Whether this Court has no jurisdiction to dispose of the present petition, as alleged? OPR-2.
5. Relief.
6. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed:
“Issue No. 1: No.
Issue No. 2: No.
Issue No. 3: No.
Issue No. 4: No.
Issue No. 5: The petition is dismissed as per operative part o
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