JUDGMENT
Dr. M.K. Sharma, J.
1. This appeal arises out of the judgment and order dated 22.3.1997 passed by the Additional District Judge, Delhi in Probate Case No. 566/ 94 dismissing the petition for grant of probate/letter of administration in respect of the estate of late Smt. Ishar Devi widow of late Shri Deena Nath, with the Will annexed dated 22.9.1978.
2 Late Smt. Ishar Devi, widow of late Shri Deena Nath Dewan was the owner of house No. D-3, Kailash Colony, New Delhi. She had three sons and three daughters. Shri N.N. Dewan, the elder son of Smt. Ishar Devi had pre-deceased her leaving behind his widow, Smt. Damyanti Devi and a daughter, Smt. Renu Chaudhary. She was survived by two sons, namely, Shri Vasheshar Nath and Shri Vishwa Nath and three daughters, namely, Smt. Shiela Rani, Smt. Shanti Rani and Smt. Shakuntala Rani. It is the case of the petitioner that prior to her death, late Smt. Ishar Devi had executed a registered Will dated 22.9.1978 in favour of her grandson
Shri Bhushan Kumar Dewan s/o Shri Vishwa Nath. It was also alleged that Shri Bhushan Kumar Dewan in favour of whom the Will was executed was the only male child in the family, since Shri N.N. Dewan had only one daughter, namely–Smt. Renu Chaudhary and Shri Vasheshar Nath had only one daughter, namely — Mrs. Nisha Sawhney.
Basing the claim on the said registered Will Shri Bhushan Kumar Dewan filed the petition under Section 226 of the Indian Succession Act for grant of probate/ letter of administration in respect of the estate left behind by the deceased Smt. Ishar Devi. Respondents 6 to 8, who are the daughters of the executrix, filed no objection as against the aforesaid petition seeking for grant of probate/letter of administration and instead they filed affidavits that the Will was genuine and they had no objection for grant of probate/letter of administration as sought for. The affidavits filed by the aforesaid respondents are on record. During the trial the appellant examined four witnesses whereas Shri Vasheshar Nath, one of the objectors examined six witnesses where as Smt. Damyanti Devi, widow of Shri N.N. Dewan examined herself as RW 3/1. The aforesaid probate proceeding was thereafter taken up for arguments and upon hearing the Counsel, the Additional District Judge by his impugned judgment and order dated 22.3.1997 dismissed the petition. Aggrieved by the aforesaid judgment and order the present appeal has been filed.
3. The Additional District Judge while dismissing the aforesaid petition held that the circumstances under which the Will came into existence were suspicious. It was also held that the Will was unnatural as the same disinherited the normal course of inheritance/succession and the legal heirs i.e. the sons and daughters were deprived of the property as the property was bequeathed to the grandson. It was also held by him that the Will was thumb marked when Smt. Ishar Devi could sign in Gurmukhi and that although the Will was typed on 16.9.1998, the date of execution and registration was 22.9.1978. It was also held that the testator was very ill and was of feeble mind at the time of execution of the Will and, therefore, the circumstances under which the said document came into existence were of suspicious nature.
4. Counsel appearing for the appellant submitted that while coming to the aforesaid conclusion the Trial Court only considered the evidence of respondents’ witnesses and did not at all considered the evidence of the petitioner’s witnesses including a Doctor whose evidence proved the mental capacity of testatrix. It was submitted that the Will was prepared and executed when the testatrix was in sound disposing mind. It was also submitted that the Trial Court erred in law and also on facts in holding that the circumstances under which the Will was executed were of suspicious nature and that the Will was unnatural. In support of his submissions the learned Counsel relied upon certain decisions to which reference would be made while dealing with the merits of the case.
5. Mr. Y.P. Ahuja, appearing for respondents 2 and 6 and Mr. A.B. Dayal, appearing for respondents 4 & 5 while refuting submissions of the Counsel appearing for the appellant submitted that not only the Will was unnatural for disinheriting the normal course of inheritance / succession but there were also many
other factors and circumstances which prove and establish that the said document, namely, the Will came into existence under suspicious circumstances. Mr. Dayal submitted that the testatrix was aged about 86 years of age and was having a very poor health because of paralytic attack and she was of feeble mind at the time when the Will was executed and she was not in a position to understand her actions. He also submitted that the Will was executed in English and it has come in evidence that she was an illiterate lady and she knew only Gurmukhi and Hindi languages. In support of his contention that the Will was executed under suspicious circumstances, the Counsel submitted that there are apparent mistakes such as in mentioning the dates and the age of two beneficiaries and also in describing the property in question as self-acquired property. It was also submitted that the dates of typing the Will and its execution are also different. It was argued that there was good relationship between the mother and the sons and other family members and there was no reason given in the Will for favouring the grandson and depriving the others, who are entitled to succeed to the estate of the deceased.
6. In the light of the aforesaid submissions I have perused the records as well as both the oral and documentary evidence. The Will has been proved in the probate suit as Ex. PW 4/A. The said Will was proved by one of the attesting witnesses, namely, Shri Balraj Gandhi. It has come on evidence that the other witness, namely, Shri M.G. Chopra, who is the son-in-law of the deceased testatrix, had since died during the pendency of the proceedings. He, however, had verified on the amended petition and had stated that Smt. Ishar Devi had executed the Will in his presence and he proved her signatures. It is the admitted case of the parties that when the aforesaid Will was executed by the deceased she was aged about 86 years of age and that she had put her thumb impression on the said Will. It is also an admitted position that although she was an illiterate lady yet she could speak Gurmukhi and Hindi languages and could sign in Gurmukhi.
7. In the context of the aforesaid admissions appearing on the record, let me now consider as to whether it could be held, as submitted by the Counsel appearing for the respondents as also by the Trial Court, that the Will was executed under suspicious circumstances. Respondents 6 to 8, who are the daughters of the deceased, filed affidavits in the suit admitting that the Will was genuine and that they have no objection to the grant of probate as sought for. One of the suspicious circumstances which was alleged by the respondents was that the Will was unnatural as by the same the testatrix sought to disinherit the legal heirs and that the sons and daughters were sought to be deprived by the aforesaid Will and the property was bequeathed to the grandson. It has come on evidence that Smt. Ishar Devi at the time of execution of the aforesaid Will and even at the time of her death was living on the ground floor of House No. 41-1, Jangpura Extension, New Delhi alongwith her son Shri Vishwa Nath and his family members including the grandson Shri Bhushan Kumar. While staying in the said portion of the house, she died on 2.10.1980, which is after two years of execution of the aforesaid Will when she was aged about 88 years. The aforesaid Will Ex. PW 4/A was thumb impressed by the deceased and there were two attesting witnesses, namely, Shri M.G. Chopra, son-in-law of the deceased and Shri Balraj Gandhi. Shri M.G. Chopra died during
the pendency of the aforesaid proceedings but he had verified the amended petition and stated that Smt. Ishar Devi had executed the Will in his presence and proved her signatures. The said declaration is appearing on the records of the Trial Court. The other attesting witness, Shri Balraj Gandhi was examined in the suit as PW 4. He had also stated that he had signed the Will at point ‘C’ in the office of the Sub-Registrar, Asaf Ali Road, New Delhi and that Smt. Ishar Devi also had put her thumb impressions at points ‘D’ & ‘E’ in his presence in the Sub-Registrar’s Office. He had also identified the signatures of Shri M.G. Chopra, the other attesting witness at points ‘A’ & ‘B’, who also stated to have signed in the Office of the Sub-Registrar. He had also stated that the contents of the said Will were read out and explained to Smt. Ishar Devi by Shri M.G. Chopra and thereafter the said document was given to the witnesses. He was cross-examined at length by the respondents when he stated that Mr. Chopra called him to come to the Sub-Registrar’s Office about a week earlier to the date of execution of the Will. He had stated in his cross-examination that he had never seen Mr. M.G. Chopra writing and signing in his presence prior to execution of the aforesaid document. He also could not tell as to who typed the Will and where it was typed. He had also stated that enquiry was made by the Sub-Registrar from the deceased/testatrix as to whether she had understood the contents of the document which she had signed. He had also stated that he did not think that the deceased/testatrix was suffering from any disease except general weakness. He also denied the suggestion that the deceased had a weak eye-sight.
8. The very nature and purpose of execution of the Will is to make known the intention of the testator regarding his property and the same has to be executed when the intention is to obstruct the natural normal line of succession, for the sons and daughters would naturally inherit according to the Hindu Succession Act on the death of the mother according to the line of succession. When a person desires to interfere with the said normal course of succession the necessity of execution of a Will arises and then such a Will is executed. It is thus natural that in the case of execution of the Will natural heirs are at times debarred and disinherited from inheriting the property left behind by the deceased. Therefore, the first circumstance, which is sought to be proved by the respondents for holding that the Will was executed under suspicious circumstances, therefore, has no merit at all. In this connection, reference may be made to the decision of the Supreme Court in Rabindra Nath Mukherjee v. Panchanan Banerjee, reported in AIR 1995 SCC 459 wherein it was held that the circumstance of deprivation should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession. It was further held that natural heirs would be debarred in every case of Will when, it may be that in some cases they are fully debarred and in others only partially. It has come on evidence that the testatrix was staying with her son for a long period of time i.e. after one of her sons left the said premises and she was being looked after by the said son and her grandson. So in the natural course she was grateful to the family for looking after her at her old age and, therefore, thought it fit that her property, on her death would go to her grandson, who also happened to be only male child in the family. The said thought process is fairly natural and it cannot be viewed with any suspicion.
9. The next circumstance under which the Will was held to be executed under suspicious circumstances was that the testatrix was having poor health and because of her advance age she was of feeble mind. At the time when the Will was executed she was of 86 years of age and she died two years thereafter i.e. at the age of 88 years. A Doctor was examined as PW 3 by the name of Dr. Yogender Pal. He has stated that he was the family Doctor of late Smt. Ishar Devi and her two sons. In his examination-in-chief he had stated that he had been the family physician for the aforesaid persons and had been visiting them for the last 23 years. He had categorically stated that the deceased Smt. Ishar Devi never suffered an attack of paralysis. He had also stated that in the year 1980 she started getting weaker due to her age but all her powers were intact and that she could speak properly, hear properly and recognise properly.
In his cross examination he had admitted that in 1980 she had weak eye sight but stated that she could always recognise. He also stated that he used to visit the deceased whenever he was called up for general check up. He had categorically denied that she was suffering from paralysis. The objectors/contesting respondents herein tried to prove and establish that the deceased had suffered a paralytic attack in 1977, which is disproved by the aforesaid evidence of the doctor.
RW 5, Shri Ashwani Kumar, who is the brother-in-law of the objector, namely, wife’s brother stated in his cross-examination that some time he used to sit with Smt. Ishar Devi even for one hour and that she used to enquire about his welfare as also the welfare of his family.
RW 3/1, Smt. Damyanti Devi was one of the objectors and she had stated in her examination-in-chief that Smt. Ishar Devi was 85 years of age at the time of her death and that she did not remain ill except her old age and she was of sound mind and her vision was also normal and similarly her hearing power was also normal.
RW 6, Smt. Renu Chaudhary, one of the daughters of the pre-deceased son did not even alleged that Smt. Ishar Devi suffered from an paralytic attack.
It has also come on evidence that Smt. Ishar Devi had gone to the office of Sub-Registrar and put her thumb impression in the office of the Sub-Registrar in front or him. The said Will is also a registered document. It thus cannot be held that at the time of execution of the Will she was not in proper mental condition to understand her actions of execution of the Will. In my considered opinion, the respondents have failed to prove that the testatrix had suffered a paralytic attack either in the year 1977 or thereafter, which plea is contrary to the records, for if she had suffered from paralytic attack, she could not have moved properly and freely, which is not the case of any of the parties. Therefore, the said plea is also found to be baseless inasmuch as she had herself gone to the office of the Sub-Registrar and put her thumb impression in the presence of attesting witnesses and the deed was also registered.
10. One of the other circumstances, which was sought to be proved by the respondents for contending that the Will was executed in suspicious circumstances is that the testatrix had put her thumb impression on the Will although she could sign in Gurmukhi language. The Will was thumb impressed by her at the age of 86 years. It has come on evidence that she was otherwise an uneducated and illiterate
lady although she could speak Hindi and Gurmukhi and could put her signature in Gurmukhi language. The aforesaid fact that she could speak Gurmukhi and Hindi languages and put her signature only in Gurmukhi language, indicate that it is not in any manner unnatural for her to put her thumb impression on the Will which was due to her advance age. The said circumstance is also not proved.
11. Counsel appearing for the respondents sought to submit during their course of arguments that the contents of the Will neither indicate nor there was any oral evidence to prove that the aforesaid Will was the last Will of the deceased Smt. Ishar Devi. It was also stated that there was good relationship between all the brothers and the sisters and there was no reason for depriving them. In my considered opinion, some errors in the Will which are of minor nature cannot effect the validity of the Will which was executed by the testatrix out of her free Will and mind. A relevant and important factor is also the fact that the Will was a registered document.
12. It was held in the case of Rabindra Nath Mukherjee (supra) that in a case where a Will is registered and the Sub-Registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested loses significance. In the present case it is on record that the Sub-Registrar had read over and explained the contents of the Will to the testatrix. Therefore, the said circumstance as alleged is also not found to be suspicious. In my considered opinion, the aforesaid conclusions laid down by the Supreme Court are fully applicable to the facts and circumstances of the present case. The Will in hand in also a registered document and it is also on record that the contents of the said document were read over and explained to the testatrix after which she had put her thumb impression of the said document. The contention of the learned Counsel appearing for one of the objectors/respondents that the witnesses produced by the petitioner were all interested, therefore, loses significance in the light of the aforesaid decision of the Supreme Court.
13. Reference may also be made to a decision of the Supreme Court in Naresh Charan Das Gupta v. Paresh Charan Das Gupta, . It was held in the said decision that once it has been proved that a Will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it.
14. It was also one of the submissions of the learned Counsel for the respondents that the Will was executed in a perfunctory manner. In support of the aforesaid contention, the learned Counsel appearing for the respondents relied upon the decision of the Supreme Court in Gurdial Kaur v. Kartar Kaur, . In the said decision it was held that the law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will.
15. Reference may also be made to a decision of the Supreme Court in Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr., . It was held in the said decision that if a Will being registered and having regard to the said circumstances it is proved to be genuine, the mere fact that the Will is registered Will, it will not by itself be sufficient to dispel all suspicion regarding the validity of the Will where suspicion exists. Relying on the said decision it was submitting that Shri Balraj Gandhi, PW 4 had stated in his deposition that he did not know Shri M.G. Chopra. In my considered opinion, the Will was executed in the presence of the Sub-Registrar and that the testatrix put her thumb impression on the Will in his presence and also in presence of the attesting witnesses. It is also stated that the Will was registered in the office of the Sub-Registrar. PW 4 has stated in his deposition that he was known to Mr. M.G. Chopra and in fact Mr. M.G. Chopra called him to be a witness to the execution of the said Will about a week prior to the execution of the Will. The age of the beneficiary under the Will has also been typed in terms of the certificate obtained by the beneficiary from the Central Board of Secondary Education.
16. It is settled law that no particular form for execution of a Will has been prescribed under any law. That being so, the said Will cannot be held to be invalid or in any manner illegal. It was also contended by the respondents that the appellant has not examined any official of the Sub-Registrar’s office. The registration of a Will, in fact, is prima facie evidence to prove that the legal formalities for registration were duly complied with and completed by the Sub-Registrar.
17. Reference may also be made to a decision of the Supreme Court in Misri Lal (Dead) By L.Rs. and Anr. v. Smt. Daulati Devi and Anr., . In the said case the Will which was executed by a widow in favour of the persons who were not relatives but had allegedly looked after the widow during her last days and in whose favour benefit under the Will was bestowed, was upheld reversing the findings of the Trial Court and upholding the findings of the High Court. In the said case also doubt raised by the Trial Court regarding execution of the Will on the basis of the thumb impression was over-ruled by the High Court and the same was upheld by the Supreme Court. The Supreme Court in the said decision held that the Will in question was genuine and the same was validly executed.
18. On appreciation of the entire evidence on record, I find that the Will in question is genuine and valid and that the testatrix was in sound disposing mind at the time of execution of the Will. The alleged suspicious circumstances pleaded by the respondents, in my considered opinion have no merit at all. Accordingly, the judgment and decree passed by the Trial Court is set aside. The suit filed by the petitioner stands decreed but in the facts and circumstances of the case, I leave the parties to bear their own costs.
