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High Court Of Madhya Pradesh
S. P. SRIVASTAVA, R. B. DIXIT
KISHAN SINGH AHLUWALIA - Appellant
Versus
SHEELA SAXENA - Respondents
L. P. A. 256 Of 1997
Decided On : 03/14/2001
Probate - Indian Succession Act - Section 276, Section 281 - The court discussed the suspicious circumstances surrounding the execution of the alleged Will, the burden of proof on the propounder, and the need to remove suspicious circumstances to satisfy the conscience of the court. The court emphasized the importance of proving testamentary capacity and the signature of the testator, and the need to explain suspicious circumstances to the satisfaction of the court.
Fact of the Case:
The case involved a probate proceeding arising from an application for the issue of a letter of Administration annexed with the Will dated 4-6-1987, claimed to have been executed by Smt. Rajendra Kaur. The trial court found suspicious circumstances in the execution of the alleged Will and dismissed the application. The appellant challenged the trial court's decision.
Finding of the Court:
The court found that the trial court had properly considered and discussed the suspicious circumstances surrounding the execution of the alleged Will. The court held that the learned single Judge had ignored various suspicious circumstances brought on record and had failed to consider the implications arising out of the various decisions regarding attestation and due execution of the Will.
Issues: The issues included the examination of suspicious circumstances surrounding the execution of the alleged Will, the burden of proof on the propounder, and the need to remove suspicious circumstances to satisfy the conscience of the court.
Ratio Decidendi: The court emphasized the burden of proof on the propounder to remove suspicious circumstances and satisfy the conscience of the court. The court also highlighted the need to prove testamentary capacity and the signature of the testator as required by law.
Final Decision: The Letters Patent Appeal succeeded, and the impugned judgment was set aside. The court confirmed the decision of the trial court, and the appeal was allowed.
( 1 ) THE subject matter in this Letters Patent Appeal arises out of the Probate proceedings numbered as Probate Case No. 71/87, whereunder, respondent Smt. Sheela Saxena had filed an application dated 14-2-1987. Under Section 276 of the Indian Succession Act praying for issue of letter of Administration annexed with the Will dated 4-6-1987, claimed to have been executed by Smt. Rajendra Kaur alias Harisharan aged about 85 years in her favour and in favour of Naveen Kumar, her son as well as Balbir Baba, her sister, Smt. Rajendra Kaur, the testatrix had died on 25-6-1987.
( 2 ) THE learned trial Court by order dated 25-6-90 allowed the application and granted letter of Administration in favour of Smt. Sheela Saxena. However, in Misce. Appeal No. 102/90, preferred by another daughter of testatrix Shakuntala Jhamb, the order Dt. 25-9-96, was set aside with the direction of remanding the matter back to the Court below providing however, that before rehearing the matter, other heirs of Rajinder Kaur who are indicated hereinabove, shall be noticed and they shall also be heard. When objections are filed afresh, if any, on that and also on objections already on record, the Probate Court shall frame points of determination and proceed to try the application for Probate on the basis of point settled for determination. Evidence on record shall be read but other evidence, if so advised may be led by parties and that too shall also be read in disposing of afresh the matter. It was further directed while allowing the application under Order 41, Rule 27 of CPC, that documents detailed in the application shall also form part of the record of the trial Court.
( 3 ) PRESENT appellant had also moved a Misce. Appeal No. 101/92, against order dt. 30-3-92 of the trial Court wherein, it was contended that he was not allowed reasonable opportunity to prove his case. This Court therefore, by order dt. 11-9-92, made it clear that the respondent/objector Shakuntala Jhamb can cross-examination afresh Smt. Sheela Saxena if she had not been cross-examined for the second time after passing of remand order. From the orders passed in C. R. No. 41/92 and M. A. No. 33/92, also it transpires that the objectors were allowed to cross-examine and further to adduce evidence on their behalf.
( 4 ) AFTER completing remaining formalities of recording evidence, the learned trial Court vide order dt. 2-5-95, came to the conclusion that there are suspicious circumstances in execution of alleged Will which the Propounder Smt. Sheela Saxena has not been able to explain. The wrong mentioning of name of her daughter-in-law, her relationship with the petitioner Smt. Sheela Saxena, interpolation of the words in para 11 of the Will, the drafting of Will by mysterious Saxena Advocate, the non-examination of Notary J. C. Katiyar, exclusion of Smt. Indira Talwar and Smt. Shakuntala Jhamb who admittedly took care of testatrix, are some of the circumstances which were not satisfactorily explained. It was also found that there is absence of attestation of witnesses of applicant as required under theprovisions of Section 281 of Indian Succession Act. (hereinafter referred in short as 'act' ). 4a. The learned trial Court in the circumstances, dismissed the application against which Misc. Appeal No. 178/95 was preferred by respondent Sheela Saxena.
( 5 ) IT is to be noticed that another Letters Patent Appeal No. 279/97 was also filed against the impugned order by Shakuntala Jhamb another objector, however, later on, she moved an application under Order 23, Rule 1 of CPC, for withdrawal of appeal on the ground that the dispute between appellant and contesting respondent Smt. Sheela Saxena has been amicably settled and therefore, appellant has abandoned her claim. This Court therefore, by the order dt. 9-2-99, dismissed the appeal.
( 6 ) THE argument of learned counsel for the appellant in the present Letters Patent Appeal is two-fold. First, the learned single Judge, by t
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