ORDER
C.M. Nayar, J.
1. This appeal has been filed to impugn the judgment dated September 29, 1994 passed by Additional District Judge, Delhi. The learned Judge dismissed the petition for grant of probate of the Will of late Smt. Narinjan Kaur who died on October 28, 1979. It was alleged that deceased Smt.Narinjan Kaur widow of late Shri Ishwar Singh was a resident of New Delhi and during her life time she had executed her Will dated October 9, 1979 bequeathing her property in favour of the appellant who is one of the daughters. Besides the appellant, the deceased also left behind two sons Sohan Singh and Mohan Singh, one more daughter Surinder Kaur and six children of pre-deceased daughter who was cited as near relations. Notice of the petition was issued to the relations. Both the sons and daughter contested the petition alleging that the Will was not genuine. They asserted that the deceased had executed another Will dated September 16, 1979 in favour of Mohan Singh and the deceased during her life time had issued public notice dated October 13, 1979 which was published in Commercial Law Gazette debarring petitioner from inheritance which will also show that the Will as propounded by the appellant was bogus. On the pleadings of the parties the following issues were framed:
1. Whether the deceased executed the Will in question while possessed of sound disposing mind?
2. Relief.
2. The parties examined their respective witnesses and the learned Additional District Judge after appreciating the evidence on record as well as the law as enunciated by the Supreme Court recorded the findings that “the Will was surrounded by suspicious circumstances and clearing these suspicious circumstances to the satisfaction of the Court is within the fold of initial onus on the propounder and until that has been done, probate cannot be granted to the petitioner. Petitioner has failed to clear and explain suspicious circumstances.” The Will, as a consequence, was held not proved and issue No.1 was decided accordingly.
3. The facts of the case are not in dispute. The deceased had left behind two sons, two daughters besides children of pre-deceased daughter. However, all her other children have been excluded from inheritance. Therefore, there is strong suspicion to hold that the Will is alleged to be a forged and fabricated document. Reliance has been placed on the judgment of the Supreme Court reported as Smt.Indu Bala Bose and others Vs. Manindra Chandra Bose and another . Paragraph 7 of the judgment which has been cited by the learned Additional District Judge clearly reiterates the proposition as under:
“…..The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus.” Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator’s mind, the disposition made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator’s mind was not free. In such a case the court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations.”
4. Similar reference is made to the judgment as reported in Kalyan Singh zs. Smt.Chhoti and others from where paragraph
20 has been cited which reads as follows:
“20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.”
5. The nature of proof is explained in the judgment reported as Smt. Jaswant Kaur Vs. Smt.Amrit Kaur and others .
Paragraph 10 of the same may be reproduced as follows:
“10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar Vs. B. N. Thimmajamma, . The Court, speaking through Gajendragadkar J., laid down in that case the following propositions :-
1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for disposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question at to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of this own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. In the present case, the following facts may be of some relevance:
(i) the deceased was ailing and expired on October 28, 1979. The Will was allegedly executed on October 9, 1979.The deceased along with appellant appellant visited Tis Hazari Courts where the will was read over to her by Mr.M.L.Mehra,Advocate. The visit was also stated to be made prior to the execution of the Will on October 6, 1979. Paragraph 16 of the judgment of the learned Additional District Judge gives the sequence of visit as follows:
“16. Then according to PW-2 , she along with her mother had gone earlier on 6.10.1979 when her mother had given instructions to Shri M.L. Mehra Advocate to draft Will and Mr. Mehra Advocate had got the Will typed from typist after giving dictation to him. Obviously it was typed in her presence. The Will is on a single page and it would have been drafted and typed within 15 to 30 minutes on the same day. There seems to be no reason why this Will would not have been collected from the typist on the same very day i.e. on 6.10.1979 when it was admittedly ready. The testatrix as per death certificate Ex.P-2 was aged about 75 years, and according to RW-5 also she was about 80 years old at the time of her death. She had died on 28.10.1979, i.e. on the 19th day thereafter. PW-2 has also deposed that she had died in Lady Harding Hospital where she was admitted 15 days earlier and had some abdominal trouble. Objector Mohan Singh as RW-4 has deposed that he came to Delhi on 28.8.1979 as his mother had called him as she was ill. Other daughter Smt. Surinder Suman as RW-5, in her cross-examination has stated that her mother was ill and died in Lady Harding Hospital. in that state of her ill-health, the testatrix would not have been in a fit state of body and mind to have gone to Tis Hazari Court on 6.10.1979 and again on 9.10.1979. This Will, if it was so drafted and typed on 6.10.1979, could have been taken by her and also could have been executed at her house, instead of with her ill-health she having taken the trouble and botheration of going to Tis Hazari again especially when two of the attesting witnesses are stated to be residents of Ramesh Nagar itself where she was living and the other witness was to be summoned from Talkatora Garden. This creates suspicion if the testatrix would have actually gone to Shri M.L. Mehra Advocate for getting her Will drafted.”
(ii) The deceased executed the alleged Will in favour of the appellant and excluded two sons, one other daughter and six children of pre-deceased daughter. A strong suspicion is cast in respect of the Will on this ground as well. The exclusion by the testatrix her other children from inheritance seems to be one ground to cast suspicion on the execution of the document. The relevant paragraph 17 of the judgment in this regard reads as below:
“17. Also by this Will the testatrix has excluded her other children from inheritance. It wan an inofficious Will. If it was actually drafted by an elderly Advocate before hand, there seems to be no sufficient ground why he would not have suggested her that the Will should also be got registered in order to lend more credence to its genuineness when she had visited him twice, and the office of Sub-Registrar at Kashmere Gate was not far away from Tis Hazari. It was all the more necessary considering her old age and her ill-health. It was also necessary in the circumstances because petitioner had taken an active part in the preparation of this Will and she is the exclusive beneficiary under the Will. This again is a very strong suspicious circumstances and it was all the more necessary and proper that the Will should have been got registered.”
(iii) The evidence has been brought on record to show that the testatrix had good relations with all her legal heirs there was no occasion to deprive them from the inheritance. The propounder of the will appellant herein and her husband took active interest in the matter. The witness Shri Pritam Dhariwal was examined as PW1. He deposed that the will was executed by the deceased in his presence as well as in the presence of Shri M.L.Mehra and one Mr.Puri who also signed the will in presence of the deceased. The petitioner examined herself as PW2 and deposed that she was looking after the deceased and she was also living with her till her death. It is not denied that PW1 is a friend of the husband of the propounder Rajinder Singh. No other witness was examined. In this background it was necessary for the appellant to examine other witnesses who had signed the alleged Will. This will obviously cast doubt and suspicion as to whether the will was in fact executed on the date as stated i.e. October 9, 1979.
(iv) It has also been held that the will was not signed by the testatrix when others had signed it. The learned judge observed that the signatures of the executant do not show natural writing speed and are not of skilled hands and such signatures can be easily forged. The deceased was an old ailing woman and it was unnatural for her to execute the Will in the manner it has been sought to be done. Therefore, the finding that the deceased would not have been in a fit state of body and mind to have gone to Tis Hazari Court on October 6, 1979 and again on October 9, 1979 for getting the Will prepared and for its execution. This will cast serious doubts when the deceased died shortly after the execution of the alleged Will and was ailing 75 years old lady.Further the suspicious circumstances will be apparent from the conduct of the appellant and her husband who were the major beneficiaries.
7. On the other hand the defendants have produced independent and reliable evidence to substantiate their claims that the Will executed by the deceased Testatrix was not genuine. RW1 Shri R.S.Rana stated in his examination-in-chief to the effect that a public notice was published on October 25, 1979 which was sent on October 13, 1979 for publication to the Commercial Gazette by Smt.Niranjan Kaur widow of late Shri Ishar Singh resident of 3/146, Ramesh Nagar, New Delhi. Ext.R.1 in this regard reads as follows:
“PUBLIC NOTICE
CORRIGENDUM
The public notice published in our Vol.2 issue No.20 dated 25.10.1979 should be read as under.
THIS IS TO INFORM all concerned and the members of the Public at large that out of all my heirs namely my two sons, Shri Mohan Singh and Shri Sohan Singh and my three daughters, namely, Shrimati Surjeet Kaur, Smt.Surinder Kaur and Smt.Pritam Kaur, all of whom are married, I have voluntarily and of my free will debarred all my heirs except Shri Mohan Singh to inherit my movables and immovable property bearing No.3/146, Ramesh Nagar,New Delhi-15, in which I have 5/6th share, after my death. I have also made a Will in favour of my son, Shri Mohan Singh. This Public Notice is being given as my son-in-law, Shri Rajinder Singh, has got certain blank papers signed by me in his possession on the basis of which he wants to make application in the Municipal Corporation and other offices for the purpose of getting the property transferred in his name.I hereby declare that except Shri Mohan Singh, no other person has any authority to make any representation on my behalf and in case anybody represents on the basis of the said blank papers in possession of Shri Rajinder Singh or any other person or in case any representation is made in any other manner contrary to this declaration, then the same shall be void and not binding on me, my estate or my son Shri Mohan Singh who is to solely inherit my aforesaid estate including 5/6 share in the property bearing No.3/146, Ramesh Nagar, New Delhi-15 as per my Will.
Delhi (Smt. Niranjan Kaur)
13.10.1979 Wd/o Late Shri Ishar Singh
R/o 3/146, Ramesh Nagar,
New Delhi."
8. The reading of the above will indicate that the husband of the propounder had got certain blank papers signed by the Testatrix. This will cast serious doubts on the veracity of the Will. RW4 Mohan Singh who is the son of the deceased stated the following facts in his examination-in-chief:
“……. Hand of my mother used to tremble while writing. I came to Delhi on 28.8.1979, as my mother had called me as she was ill and wanted me to take care of my house. My mother told me when I came to Delhi that Surjit Kaur who was living with her was harassing her. I was never told by her that she had made any will in favour of Surjit Kaur. My mother got published notice in the newspaper that whatever she wanted to give had given to me. My mother was taken away by my brother-in-law and Surjit Kaur. (objected to). I performed the kirya ceremony of my mother and the Path was kept in Gurudwara and bhog ceremony was performed outside my house in a street. Surjit Kaur did not allow to perform bhog ceremony in the house. Surjit Kaur and her husband had attended the funeral and no other ceremony.”
9. Similarly, RW5 Smt.Surinder Suman, sister of the appellant Surjit Kaur stated that her mother had made a Will in favour of Mohan Singh and had not made any other Will. The said Mohan Singh performed the cremation ceremony of the Testatrix and Akhand Path took place in Gurudwara and Pagri ceremony took place in the street outside the house as Surjit Kaur did not allow to perform the ceremony in the house. It is further stated that her mother used to ask the appellant Smt.Surjit Kaur to leave her house which she refused to do and gave beating to the deceased.
10. The evidence as produced by the respondents will clearly cast serious doubt on the execution of the Will by the deceased Testatrix a few days before her death i.e. October 9,1997 when she passed away in hospital on October 28, 1979. The appellant and her husband on the admitted facts played an active role in the execution of the alleged Will. The only witness produced was the friend of the husband of the appellant. In this background suspicion is cast on the voluntary character of the document. The learned Additional District Judge has carefully analysed the evidence on record and arrived at a conclusion that it was not proved that the Will was the genuine Will of the deceased and dismissed the probate petition. The entire evidence has been assessed and no fault can be found in the judgment as rendered in the case.
11. For the above reasons, there is no force in this appeal and the same is, accordingly, dismissed. There will be no order as to costs.