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2001 (2) JLJ 287
S.P. Shrivastava and R.B. Dixit, JJ.
Kishan Singh Ahluwalia v. Smt. Sheela Saxena and others
Letters Patent Appeal No. 256 of 1997; against the Order passed in
Misc. Appeal No. 178/95; Decided on 14.3.2001.
(2) Succession Act, 1925 -- Ss. 59 Expl. 4, 63(c) and 76 -- Evidence Act, 1872 -- S. 68 -- Transfer of Property Act, 1882 -- S. 3 -- Will -- doubt whether testator signed after attesting witnesses -- inaccurate recitals of grave nature -testamentary capacity also doubtful -- execution suspicious. [Paras 46, 23 & 32
(3) Succession Act, 1925 -- Ss. 2(h) and 76 -- Will -- incorrect recitals of grave nature -- not understandable why inaccuracies were not rectified by testatrix -- Will rendered Suspicious.
The question which arises for consideration is as to whether the inaccurate recitals contained in the Will are sufficient pointer towards the incapability of the testatrix to understand the contents of the Will. If the Will according to the propounder had been read out twice to the testatrix and she had been able to hear what was read out to her, it is not understandable as to why these inaccuracies were not rectified then and there. [Paras 33 & 23
(4) Succession Act, 1925 -- S. 2(h) -- Will -- deprivation of natural heirs should not give rise to suspicion -- idea behind Will is to interfere with normal rule of succession. AIR 1995 SC 1684 followed. [Paras 20 & 43
(5) Succession Act, 1925 -- Ss. 2(h) and 63 --Will -- active participation in preparation or execution by beneficiary -- propounder must adduce best evidence to remove suspicion. AIR 1964 SC 529, AIR 1965 SC 354, AIR 1968 SC 1332, AIR 1974 SC 1999, AIR 1982 SC 133, 1998 (II) MPWN 87 (SC), 1998 (1) Vidhi Bhasvar 95 and 1999 (2) JLJ 133 followed. [Para 21.
(6) Succession Act, 1925 -- S. 2(h) --Will -- two out of four daughters disinherited without explanation -- subsequent document stating satisfaction of testatrix and equal share to all daughters -- creates doubt about execution.
Smt. Rajendra Kaur was hard of hearing and could hear from very near. She herself had not read the Will. The inaccurate recitals in such circumstances are sufficient to indicate that in fact Smt. Rajendra Kaur, the testatrix had not been able to understand the contents of the Will and the disposition of the properties indicate that neither the testatrix knew nor could have approved of its contents. The suspicion instead of being removed or explained gets deepened from the fact that in her affidavit sworn on 22.6.1988, the testatrix had in clear terms indicated that she had disposed of her immovable property giving shares to all of her four daughters but the Will (exhibit P-3) purports to exclude two of her daughters and disinherit them from getting anything in the immovable properties. 1998 (II) MPWN 87 (SC) and AIR 1972 SC 2492 followed. AIR 1995 SC 1684 and AIR 1977 SC 63 distinguished. [Para 35
¼1½ mÙkjkf/kdkj vf/kfu;e] 1925&/kkjk 2 ¼t½ rFkk 63&foy&fu"iknu lansgkLin&mldk lcwr oknh rFkk çfroknh ds e/; lk/kkj.k eqdnek ugha jg tkrk&Uk;ky; ds foosd ds lek/kku dk ekeyk gks tkrk gSA ¿iSjk 17
¼2½ mÙkjkf/kdkj vf/kfu;e] 1925&/kkjk 59 Li"Vhdj.k 4] 63¼x½ rFkk 76&lk{; vf/kfu;e] 1872&/kkjk 68&laifÙk varj.k vf/kfu;e] 1882&/kkjk 3&foy&lansg fd olh;rdrkZ }kjk vuqçek.ku lkf{k;ksa }kjk gLrk{kj djus ds i‘pkr gLrk{kj fd, x,&xaHkhj çÑfr dks xyr fof‘kf"V;k¡&olhrh lkeF;Z Hkh lansgtud&fu"iknu lansgtudA ¿46] 23 ,oa 32
¼3½ mÙkjkf/kdkj vf/kfu;e] 1925&/kkjk 2 ¼t½ rFkk 76&foy&xaHkhj çÑfr dh xyr fof‘kf"V;k¡&;g le> ds ijs fd fof‘kf"V;k¡ olh;rdrkZ fu"iknd }kjk D;ksa ugha lq/kkjh xbZ&foy lansgkLin gks tkrh gSA
fopkjkFkZ mn~Hkwr gksus okyk ç‘u bl ckjs esa gS fd fcy esa varfoZ"V xyr çfof"V;k¡ ;g bafxr djus ds fy, i;kZIr gSa fd olhr;d=hZ foy dh varoZLrq le>us esa v{ke FkhA foy ;fn olh;rd=hZ dks nks ckj i<+dj lqukbZ xbZ Fkh vkSj tks mls i<+dj lquk;k x;k Fkk og mls lqu ldh Fkh tSlk çfr;knd }kjk crk;k x;k gS] ;g le> ls ijs gS fd ;g xyfr;k¡ mlh le; Bhd D;ksa ugha dj nh xbZA ¿iSjk 33 ,oa 23
¼4½ mÙkjkf/kdkj vf/kfu;e] 1925&/kkjk 2¼t½&foy&uSlfxZd okfjl dks oafpr fd, tkus ls lansg mn~Hkwr ugha gksrk&foy ds ihNs ;kstuk mÙkjkf/kdkj ds lkekU; fu;e esa gLr{ksi dh gSA , vkb vkj 1995 ,l lh 1684 vuqlfjrA ¿iSjk 20 ,oa 43
¼5½ mÙkjkf/kdkj vf/kfu;e] 1925&/kkjk 2¼t½ rFkk 63&foy&rSkjh vFkok fu"iknu esa fgrkf/kdkjh dh lfØ; lgHkkfxrk&çfriknd }kjk lansg feVkus ds fy, loksZÙke lk{; fn;k tkuk gksrk gSaA , vkb vkj 1964 ,l lh 529] , vkb vkj 1965 ,l lh 354] , vkb vkj 1968 , lh 1332] , vkb vkj 1974 ,l lh 1999] , vkb vkj 1982 ,l lh 133] 1998 ¼2½ e-ç- ohDyh uksV~l 87 ¼mPpre U;k-½] 1998 ¼1½ fof/k HkkLoj 95 rFkk 1999¼2½ ts ,y ts 133 vuqlfjrA ¿iSjk 21
¼6½ mÙkjkf/kdkjh vf/kfu;e] 1925&/kkjk 2¼t½&foy&pkj iqf=;ksa esa ls nks Li"Vhdj.k fcuk nk;oafpr dh xbZ&i‘pkrorhZ nLrkost esa olh;rd=hZ dk lek/kku rFkk lc iqf=;ksa dks cjkcj dk va‘k dfFkr&fu"iknu ds ckjs esa lansg l`ftr gksrk gSA
Jherh jktsanz dkSj Å¡pk lqurh Fkh rFkk cgqr gh ikl ls lqu ikrh FkhA mUgksaus Lo;a foy ugha i<+h FkhA bu ifjfLFkfr;ksa esa xyr fof‘k"V;k¡ ;g bafxr djus ds fy, i;kZIr gSa fd okLro esa olh;rd=hZ Jherh jktsanz dkSj] foy dh fo"k;&oLrq le> ugha ldh Fkh rFkk laifÙk ds forj.k ls ;g minf‘kZr gS fd foy dh fo"k;&oLrq dh u olh;rd=hZ dks tkudkjh Fkh vkSj u mldk vuqeksnu gh dj ldrh FkhA lansg] nwj gksus vFkok mldk Li"Vhdj.k gksus ds ctk; bl rF; ls vkSj xgjk gks tkrk gS fd 22-6-1988 dks ‘kiFkiwoZd fu"ikfnr vius ‘kiFki= esa olh;rdrkZ us Li"V ‘‘kCnksa esa minf‘kZr fd;k gS fd mlus viuh lHkh pkjksa iqf=;ksa dks va‘k nsdj viuh taxe laifÙk dk O;;u dj fn;k Fkk fdarq cy ¼çn‘kZ ih&3½ dk mís‘; mldh nks iqf=;ksa dks vioftZr djus vkSj LFkkoj laifÙk;ksa esa ls dqN Hkh çkIr djus ls nk;&oafpr djus dk gSA 1998¼2½ e-ç- ohDyh uksV~l 87 ¼mPpre U;k-½ rFkk , vkb vkj 1972 ,l lh 2492 vuqlfjrA , vkb vkj 1995 ,l lh 1984 rFkk , vkb vkj 1977 ,l lh 63 çHksfnrA ¿iSjk 35
Key Points: - When a Will is shrouded in suspicion, its proof shifts from a simple dispute to a matter of satisfying the Court's conscience, requiring the propounder to provide a cogent and convincing explanation (!) (!) . - The burden is on the propounder to prove the testator was free and capable, and to remove suspicion surrounding execution and attestation (!) . - In cases of suspicious execution, the testimony of attesting witnesses alone is not conclusive; other evidence, including expert opinion, may be required to corroborate or contradict the proof of the testator's signature (!) . - Incorrect recitals of a grave nature in the Will, where a sound-minded testator could not have been a party, raise suspicion and may indicate the testator's incapability to understand the contents (!) (!) (!) . - Non-compliance with procedural provisions, such as non-examination of the notary or failure to record evidence as required by law, is fatal to the applicant's case (!) (!) . - Active participation in the preparation or execution of a Will by a beneficiary creates suspicion that must be removed by the propounder (!) . - Disinheriting natural heirs without explanation may raise suspicion, though it alone does not necessarily invalidate a Will (!) (!) . - The trial Court must consider all suspicious circumstances on record, and an appellate Court cannot rely on earlier findings after a remand that directed a fresh hearing (!) (!) . - A Will executed hastily in secrecy, with discrepancies in witness testimonies and failure to properly record or explain key details, undermines its validity (!) (!) (!) . - The ultimate question is whether the evidence satisfies the Court that the Will was duly executed by a free and capable testator (!) (!) .
Dixit, J. -- 1. The subject matter in this Letters Patent Appeal arises out of the probate proceedings numbered as Probate Case No. 71\87; where under, respondent Smt. Sheela Saxena had filed an application dated 14.7.1987. 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 Bava, her sister. Smt. Rajendra Kaur, the testatrix, had died on 25.6.1987.
2. The learned trial Court by order dated 25.6.1990 allowed the application and granted letter of Administration in favour of Smt. Sheela Saxena. However, in Misc. Appeal No. 102\90, preferred by another daughter of testatrix, Shakuntala Jhamb, the order dated 25.9.1996, 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 Rajendra 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 points 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 Misc. Appeal No. 101/92 against order dated 30.3.1992 of the trial Court, wherein it was contended that he was not allowed reasonable opportunity to prove his case. This Court ,therefore, by order dated 11.9.1992, made it clear that the respondent-objector Shakuntala Jhamb can cross-examine 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 CR 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 dated 2.5.1995, 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 the provisions 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, late 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 dated 9.2.1999, 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,
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