JUDGMENT
J.D. Kapoor, J.
1. The main case (Suit No. 921/93) has been consolidated with Probate Petition No. 38/92 for the purpose of trial and decision because of the commonality of the disputes and evidence. Suit filed by the plaintiff is a declaratory suit. It seeks declaration of the effect that the plaintiff is the absolute owner of the property bearing Bungalow No. 4, Rajdoot Marg. Diplomatic Enclave, New Delhi by virtue of Will dated 6.8.1990 executed by his father late Sh. Kartar Singh, the owner of suit property as defendant Nos. 1 & 5 have only limited right of residence in the portion of the property as described in the Plan.
2. Plaintiff and defendants 4 & 5 are the legal heirs of late Shri Kartar Singh whereas defendants 1 to 3 are the children of the predeceased son of Shri Kartar Singh.
3. As is apparent case of the plaintiff stems from the unregistered Will dated 6.8.90 whereas the defendant No. 5 Mohini, the daughter of late Sh. Kartar Singh has based her claim and sought Probate of the registered Will dated 20.9.85. It is not in dispute that late Kartar Singh was the owner of the suit property and, therefore, had the right to deal with the property in any manner be liked.
4. The main question that calls for determination is which of the two Wills is valid and legally effective.
5. According to defendant No. 5 the Will set up by the plaintiff is a forged and fabricated document as it was prepared after the demise of the testator. On the other hand the plaintiff has assailed the Will set up by defendant No. 5 Mohini on the premise that it was obtained under undue influence, pressure and coercion as the deceased Kartar Singh initially permitted defendant No. Mohini to live with him when she was in difficulty and later on Kartar Singh being on old man allowed her to stay with him as he was maintaining all the expenses including those of kitchen. Further that as per Section 62 of the Indian Succession Act, 1925, it is the last Will that prevails Section 62 provides as under:
32. Will may be revoked or altered :-
A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.
6. Though defendants 1, 2 & 3 had filed the written statement but they did not prosecute it further nor did they produce any evidence in support of their defense. The defenses set up by defendants 1, 2 & 3 is in the same vein as that of defendant No. 5.
7. The main objection of the defendant Mohini is that the Will set up by the plaintiff is an unregistered Will which is purported to have been executed just four
months prior to the death of Kartar Singh and prima facie raises a strong suspicion as to its veracity and validity.
8. Apart from this the defendant has also tried to show that it has not been made specifically clear that Kartar Singh was not keeping good health in the year 1990. It is alleged that some time in the year 1988 he was operated for Hernia and thereafter he had developed urinary problem. It was defendant No. 5 who spent on his medical treatment and even paid the funeral expenses after his death.
9. One of the covenants of the Will dated 6.8.1990 was that it shall be obligatory on the part of the plaintiff to perform the marriage of the grand daughter Daminder Kaur i.e. defendant No. 2 who is presently living with her mother. According to defendants 1, 2 & 3 this covenant was introduced as a ploy and a bait for them so that they may fall in a trap of the expenses of the marriage of the daughter of defendant No. 1 to be borne by the plaintiff. Plaintiff also introduced this covenant to provide reasons for execution of the Will in his favor.
10. Following issues have arisen for determination in Suit No. 921/1993 & PR No. 38/1992:-
S. No. 921/1993
1) Whether the Will dated 06.08.1990 executed by Late Sh. Kartar Singh is true and valid ?
2) Whether the suit for declaration is maintainable?
3) Relief
PR No. 38/1992
1) Whether the Will dated 20.09.1985 is true and valid ?
2) Relief
11. In order to show and prove that Kartar Singh was in sound and disposing mind, the plaintiff has produced PW-3 Surinder Singh, an official of the Mahindra Hospital, PW-4 H.K. Lamba Security Guard of the adjoining building. Besides them the plaintiff has also examined both the attesting witnesses namely, PW-1 Amarjit Singh and PW-2 Pritam Singh. PW-8 Mr. T.S. Awasthi Senior Assistant of the STIDA Talkatora Indoor Stadium was examined to show that Kartar Singh was not bed ridden as alleged by the defendants as on 14.8.90. He had attended the function held in the said Stadium. PW-9 Ashok Kumar is a photographer. He has proved the photo of Kartar Singh taken by him on 14.8.90 in the Talkatora Stadium. The said photograph is exhibit RW-1.
12. PW-1 Amarjit Singh, an attesting witness to the Will, deposed that Kartar Singh had came to him at his office shop No. 9, Gole Market Along with Pritam Singh and told him that he had come to him with a Will and wanted him to be a witness of the same. The Will was signed by Pritam Singh as well as Kartar Singh in his presence and he also signed the same as a witness.
13. According to him Kartar Singh was in a fit state of mind as he kept on conversing with him. He also stated that before Kartar Singh came to his office he had received a telephone call from plaintiff Manmohan Singh who told him that Kartar Singh wanted to see him. When Kartar Singh came to him he told that he wanted him to be a witness of the said Will. He further stated that Kartar Singh
signed all the three pages of the Will in his presence and he only signed at point ‘B’ of the last page and that the Will was first signed by Kartar Singh, then by Pritam Singh and lastly by him.
14. However he did not remember which of the grand daughters of Kartar Singh he wanted to be married with his son nor did he remember the exact date of death of his son. He denied the suggestion that as the leg of Kartar Singh was fractured he could not move out and, therefore, did not attend the Bhog Ceremony of his son.
15. He admitted that when Kartar Singh came to his office he was accompanied by Manmohan Singh. He admitted the suggestion that he was having business dealings with Manmohan Singh as well as deceased Kartar Singh. According to him his relations were only to the extent that he was a religious person and used to meet him at the Gurudwara once a week or so. However, he admitted that he was not wearing spects and he did not check his eye sight but he reiterated that Kartar Singh had signed in his presence. He was not aware of the fact whether Kartar Singh had also been operated for cataract. He also admitted that the hands of the Kartar Singh used to shake a little but he maintained that at the time when he signed it was not shaking. However, the witness was able to identify Kartar Singh in photograph marked ‘G’ whereas he could not identify Kartar Singh in photograph mark ‘I’.
16. PW-2 Shri Pritam Singh is another attesting witness. Admittedly he knew Shri Kartar Singh as he was his Guru Bhai. He used to go to him to prepare the certificate issued by the Society. After seeing the Will Ex. PW1/1 he identified his signatures at point “C” and Shri Kartar Singh’s at point “A”. According to him the Will was signed at Bhagat Singh Market i.e. Gole Market in the office of Sardar Amarjit Singh. According to him. Shri Kartar Singh was in a fit state of mind when he signed the Will.
17. The witness was 70 years old when he made the aforesaid deposition. He denied the suggestion that he had any business dealings with Shri Kartar Singh. He even did not know as to which business Shri Kartar Singh was engaged in. He only knew that he was known as Patharwala. He could not tell as to how many years age the certificate was obtained by him from Shri Kartar Singh. He was shown one document mark “A” purporting to be certificate issued by Shri Kartar Singh but he could not say as to who has signed this document at point “X”. He could not recollect the day when Will was executed but remembered the month. He also did not remember whether it was holiday or not. Admittedly he was called at Bhagat Singh Market by Manmohan Singh. Shri Manmohan Singh told him on phone that his father wanted to meet him at Bhagat Singh Market. He went there on scooter. When he reached there Shri Kartar Singh was already there. He admitted that the Will had already been typed when he saw it. He did not know whether any copy of the Will was prepared or not. Nor could be recollect whether there was any typist in the shop of Shri Amarjit Singh at that time. He happened to go to the office of Shri Amarjit Singh on the day of execution of the Will but he used to meet him in the coffee house. He could not tell as to what was the business of Amarjit Singh. He did not see any goods lying in the shop of Amarjit Singh. He did not see any employee in the office of Amarjit Singh though he remained there for about an hour or so.
18. He also testified that the eye sight of Shri Kartar Singh was normal though he was not aware of any ailment. Suggestion was advanced whether he had stopped going outside because of ailment to which he showed his ignorance. However, he denied the suggestion that at the time of executing the Will hands of Shri Kartar Singh used to tremble on account of old age and ailment from which he was suffering and that is why his hands shook while signing and writing. He was not aware whether Shri Kartar Singh was operated for removal of cataract in February 1990 but he denied the suggestion emphatically that his eye sight had become poor on account of operation.
19. He did not know whether Shri Kartar Singh used to Wear spects. He also did not know whether Shri Kartar Singh had fallen from stair-case on account of poor eye sight. He also denied the suggestion that because the poor eye sight Shri Kartar Singh did not go to Bhagat Singh Market on that day. The suggestion was also advanced that on 13th August 1990 Maharaj Ji had visited in his presence. He was shown the photographs of Kartar Singh for identification. He identified Shri Kartar Singh correctly at point “X” though was not sure. The photographs were very small and not clear and, therefore, he was not sure whether at point “X” Shri Kartar Singh was there or not but he made it clear that the photographs appeared to be that of Sardar Kartar Singh. He himself put the signatures on the photographs of Shri Kartar Singh at the instance of Shri Man-mohan Singh.
20. PW-3, Shri Surinder Singh, an official of Mohinder Hospital, Green Park produced the record of the hospital. As per the record Shri Kartar Singh was admitted in the hospital on 14.9.1990. The Will pertaining to Kartar Singh was also proved by this witness which is Ex. PW3/2. However, he did not produce the case history recorded by the doctor as according to him case history was handed over to the patient at the time of discharge.
21. PW-4, Shri H.K. Lamba was working as security guard in the American Embassy adjoining the suit property. According to him he knew Shri Kartar Singh as he resided at House No. 4 at Rajdoot Marg as he used to go for a walk at the time when he was on duty. He also used to wish him sometimes in the morning and sometimes in the evening while he used to go for a walk as he was elderly person. He also identified Shri Kartar Singh at point “A” in the photograph Ex. R1. He also used to give Ayurvedic medicines to the patients as he had done graduation in Ayurvedic medicines after qualifying as Vidya Alankar which is equivalent to matriculation. His duty was that of a rest reliever and, therefore, sometimes he used to be on duty at House No. 1, sometimes at house No. 6 and sometimes at House No. 17. His duty hours and place of duty used to be fixed by the Embassy by way of a roster. According to him, he used to see Shri Kartar Singh alone while going for walk. He last saw Shri Kartar Singh in July 1990. However, he stated that Shri Kartar Singh used to wear glasses. Though he used to see Manmohan Singh coming to house No. 4 Rajdoot Marg but he did not know whether he used to reside there or not.
22. PW-5, Shri B.S. Ramachandran, Manager in Syndicate Bank could not produce the document as the account No. 33471 was closed prior to 1992 and the record which was more than five years old had been destroyed.
23. PW-6, Shri Praveen Sharma, Clerk of Canara Bank produced the card of saving account No. 2314 of Shri Kartar Singh, Ex. PW6/1 bearing the specimen signatures of Shri Kartar Singh. However, he could not tell in the absence of the records whether Shri Kartar Singh had given another specimen signature after 26th November, 1979 or not.
24. PW-7, Shri Prakash Bahuguna of ANZ Grindlays Bank has produced the record pertaining to account No. 2132 opened on 10th June 1975 in the name of Shri Kartar Singh. Kartar Singh also gave another specimen signature on 15th September 1982 when this account was converted into a joint account of Kartar Singh and Mrs. Mohini.
25. PW 10, Shri Manmohan Singh is the plaintiff. His testimony in brief is that in August 1990 his father was in a ft state of health and mind though he used to feel some weakness in walking. His father used to tell him that something had been got written from him by his sister. He told him about this sometime in February/March 1990. On 6th August 1990 which was a day of Rakhee there were about 2/3 persons in the house. One of his sisters who had come from Agra wanted to leave early as she had some work there. It was at about 8 a.m. while they were getting down for Gurudwara that his father stopped near mezzanine floor and asked him to ring up Pritam and Amarjit Singh as he had some work with them. He rang them and informed them that his father is reaching the shop of Shri Amarjit Singh. Pritam Singh was also asked to reach there.
26. They went to Gurudwara and thereafter his father asked him to take him to his old typist at Bangla Sahib Road which is a part of Bhagat Singh Market. His father did not tell him as to why he was going to the place of the typist. One supervisor was present there. His father told him that he wanted to make a Will and dictated the Will to him which he noted down in the shorthand. The draft was first checked by his father and then final Will was typed. The Will was dictated by his father on his own. Thereafter they went to the shop of Shri Amarjit Singh. Shri Pritam Singh met them outside the shop and his father told him that he had prepared the Will. The Will was first signed by his father and then by Amarjit Singh. They also remained there for half an hour. According to him, he came to know about the previous Will of his father for the first time on that day when his father dictated the Will to the typist. He also told him that some papers were also got signed from him may be by Daljit Singh or his sister. After the execution of the Will his father asked him to drop him at his house. It was on the way that he handed over the Will and told him to get it registered if he could get time for this purpose.
27. According to him his father’s state of health was normal when he executed the Will. He did not have any permanent ailment at that time nor was he suffering from any coronary disease. On 14th August 1990 his father Along with him had gone to attend a marriage ceremony and at that time his sister Mohini and Daljit Singh also accompanied him. The sister who was living in Agra and her husband also accompanied them. Ceremony was at Talkatora Stadium. Photographs were taken there. The said photograph of Shri Kartar Singh was shown at point “B” and of Maharaj Ji Sahib at point “D”. In September, 1990 his father suffered leg injuries. On the advice of Mr. Daljit Singh he was taken to Mahindra hospital for. X-ray. Even at that point of time the speech as well as the
sight of his father was alright. However, he used to stammer for a moment when his artificial upper denture got slipped from its original place.
28. In order to controvert the allegation of defendant that the first and second floor of the house was not constructed by his father, he produced the accounts of the ledgers maintained by his father showing that it was from the account of his father that the money was taken out. Ex. PW 10/1 contains seven pages. However, he could not tell as to how much amount was spent on second floor and as to how much money was spent by Mohini and Daljit Singh. According to him, it was something between Rs. 25000/- to 30000/-. Additional second floor was completed within one month. He admitted that Shri Kartar Singh shifted to his house in 1994. He used to stay at 1st floor and used to go to 2nd floor for sleeping. He admitted the signatures of Shri Kartar Singh and list of the persons to whom Shri Kartar Singh used to send the greetings. He admitted that entries at point “A” were in the hand-writing of Shri Kartar Singh which were made prior to 1972. He also admitted that the person shown a S. No. 18 of this list is different from the person who is attesting witness to this Will. He also admitted that his father was operated in 1950-51 and again in 1987 an thereafter he started using glasses. He could not tell as to whether these were for near sight or distance. He also admitted that the said Will was executed on 6th August 1990 which was a ‘Rakhi day’ and his sister had come from Agra.
29. Pitted against this evidence the defendants have examined four witnesses. Of them DW 1 Smt. Mohini is petitioner in the probate case and defendant No. 5 in the suit. DW 2 Mr. J.R. Bajaj is one of the attesting witnesses of the Will dated 28.9.1985. DW 3 Ram Pal is a record keeper in the Punjab National Bank, Chanakya Puri, New Delhi. DW 4 Shri S.M. Kapoor is the Manager, PNB Chanakya Puri, New Delhi. DW 5 Shri Ashok Kashyap is a hand-writing expert.
30. The testimony of DW 1 Mohini in brief is that she used to reside with her father as he was being neglected by her brothers. Her father was taking food from her kitchen. In 1984 she along with her father shifted to 4 Rajdoot Marg house where she was given one barasati on second floor. In 1985 her father became physically weak and so became his memory and, therefore, his health kept deteriorating. Though she stated that her father had executed the Will but she did not know when it was executed. According to her she was told by her father about the Will after the marriage of her daughter Jasbir Kaur and a copy of the same was given to him. She identified the signature of her father on the said Will. According to her, her father used to give money to Manmohan Singh as and when he came to take the same as he stopped doing any work after death of Balbir Singh in 1983. Wife of Manmohan Singh was in service. It was she who alone was looking after her father. Manmohan Singh used to visit his father only after 3/4 days as he used to reside at the farmhouse of her daughter. After operation of hernia her father had become very weak. She and her husband had all along been looking after him.
31. However, she could not recall when did Manmohan Singh start residing on the first floor of the house at Rajdoot Marg but she was certain that he was not residing when Kartar Singh sustained fracture or at the time of his death. According to her, her father became weak after operation of hernia but he could talk
properly though he could not recognise people at first instance. According to her, Kartar Singh used to go to Gurudwara at Malcha Marg. He always used to be accompanied by her husband as his eye-sight was weak. He had also become mentally very welk. She also stated that her father Along with her and her husband had attended the ‘bhog’ ceremony of mother of Hanspal in an auto rickshaw as Man-mohan Singh did not come to take them. She deposed that her father used to keep papers in a bag. Documents were taken by Manmohan Singh from the room of Shri Kartar Singh. She denied the suggestion that till the death of her father she and her husband used to correspond on behalf of Kartar Singh and used to do all work on his behalf. She also denied the suggestion that her father used to expend entire income or her as well her family. When she was shown the Will Ex. PW1/1 purported to be in favor of the plaintiff she denied the signatures of her father. She admitted that no witness signed the Will in her presence. According to her, Kartar Singh himself got the Will prepared as he himself used to get the documents written.
32. According to her, her father got her name included in the PNB by going personally there. Being a Councillor of the Area, her father used to issue certificates and continued giving certificates till September 1990. Earlier to this the persons desirous of taking certificate used to come Along with the applications. She produced certain certificates which according to her bears signatures of her father. Ex. DW1/P-1 is the certificate dated 14.8.1990, Ex. DW1/P-3 is another certificate and DW1/P-4 the cheque purporting to bear signatures of Kartar Singh. However, she admitted that in the photographs her father has been shown attending the ‘bhog ceremony’.
33. DW 2 Mr. J.R. Bajaj testified that the Will of Kartar Singh was drafted by one of his colleagues as he had taken Kartar Singh to the office of Mr. Khurana where he had also signed the Will after Shyam Sethi signed the same. Copies of the Will were prepared. One was retained by Mr. Khurana and one was retained by Kartar Singh. According to her Kartar Singh was not in a position to recognise people as his condition started deteriorating since June/July 1990. Shyam Sethi was working as office assistant in the office of Mr. Khurana.
34. DW 5 Ashok Kashyap, Hand-writing expert has examined the disputed signatures marked Q1 to Q6 on the Will dated 6.8.1990 and standard signatures marked A1 to A9 and specimen signatures marked s1 TO s13. On comparison he had come to the conclusion that the questioned signatures marked Q1 to Q6 on unregistered Will dated 6.8.1990 did not tally with the standard signatures marked A1 to A9 and specimen signature marked s1 to s13. Detailed reasons for his opinion are given in Ex. DW5/1.
35. His technical knowledge, and the conclusions were challenged. Following excerpts may be relevant:
“By using the expression above average writer, in my observation No. 1. I mean that the writing skill of the writer was above that of an average writer. I have not given in my report distinction between average writer and above average writer. I have not given any reasons for my observations that the standard signatures were of an above average writer, as the reasons would have been very lengthy. However, I can give the
reasons at this stage. It is wrong to suggest that my observations 1 and 2 are vague and without data. I cannot refer to any authority which requires the examiner to examine only the signatures and not the whole document. I have not specified what are the broad disagreement referred to in observation No. 4 in my report at page 3. It is not essential that in every case of traced forgery the form would be exactly the same. It would depend upon the performance and skill of the forger. By pictorial effect I mean the effect of the picture on the brain. It is wrong to suggest that my observation No. 5 (b) is wrong and without any data. It is wrong that every movement has its own characteristic. It is correct that I have not mentioned those characteristics nor identified the movement. I did not do it as it was not necessary and it would have lengthened the report. It is wrong to suggest that my observation 5(c) is wrong and without data. It is wrong to suggest that my observation 5(d) is vague. It is wrong to suggest that my observation 5(e) is just repetition of the observations made by me elsewhere in the report. It is correct that I have not given any data regarding observations No. 5(f). It was not necessary for me to give such data. I cannot discover meaning word of the tern elliptical used in observation 5(g) but we use this word in our parlance for some sort of superior writing. It is wrong to suggest that elliptical is a shape which could be horizontal or vertical. It is correct that there would not be any paramount differences in case of traced forgery but there may be some insignificant differences in style on account of incompetence of the forger. It is wring to suggest that the observation 5 (g) and 5(i) contradict the observation 5(h). By relative position mentioned in observation 5(i) I mean the assessment of the positions in respect to an imaginary line at the base drawn either at the base of the signature or even at the top of the signature in order to judge their height or the level of similarity/differences. It is wrong to suggest that my observation 5(j) is wrong and without data. It is wrong to suggest that comparative signatures also show dellcate differences in respect of relative position. There are only normal variations in the comparative signatures, which are always present in the hand writing of the same person. The comparative signatures do not show any delicate difference in respect of relative positions of the letters. It is wrong to suggest that my all these observations are wrong and contrary to the data. It is wrong to suggest that my observations regarding the letter ‘K’ at pages 4 and 5 of my report are vague and without data. By left base I mean the base of the staff (1). By right base I mean the base of the slanting stroke in. It is true that the left base is lower than the right base in A1. It is also lower in A3, A6, S2, S1 and S4. It is correct that it is much lower in Q2 as compared to Q1.”
36. At the outset Mr. D.R. Bhatia, learned counsel for the defendants has challenged the maintainability of the suit. Admittedly this is a simplicator suit for declaration based upon the unregistered Writ dated 6.8.1990. The plaintiff is in occupation of the first floor of the premise. The possession of the ground floor is lying with the Court as earlier it was with the tenant. Defendant No. 5 is in
occupation of second floor. Defendant No. 1 is in occupation of front portion of the first floor. The plaintiff is in possession of the rear portion.
37. In view of the aforesaid facts, the contention of Mr. Bhatia is that the suit is barred by Section 34 of the Specific Relief Act which read as under:
“34. Discretion of court as to declaration of status or right
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation – A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.”
38. Mr. Bhatia also referred to the provisions of Order 2 Rule 2, CPC which prohibit a person entitled to more than one relief in respect of the same cause of action of sue for any of such reliefs without leave of the Court. Order 2 Rule 2, CPC provides that “every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court and where a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.”
39. Concomitant with this provision Mr. Bhatia also relied upon the provisions of Sections 208, 214 and 295 of the Indian Successions Act, 1925. Section 208 contemplates that a suit for possession can be filed if a person has been evicted from the possession. Section 214 provides that a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased is necessary for seeking any kind of relief. Section 295 says “in any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.
40. Next, Mr. Bhatia has relied upon the provisions of Section 273 of the Indian Succession Act that probate or letters of administration issued by the High Court or District Judge are binding and conclusive throughout the State in which the High Court or District Judge is working. The proviso to section 273 of the Act provides binding force to the probate or letters of administration with respect to any property which is situated even in another State.
41. Mr. Bhatia has placed strong reliance upon the provisions of Section 276 of the Act as it makes it mandatory to apply for probate wherever there is a Will Relevant extracts of Section 276 read thus :-
276. Petition for probate
(1) Application for probate or for letters of administration, With the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in Sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating
(a) the time of the testator’s death.
(b) that the writing is his last will and testament.
(c) that it was duly executed.
(d) the amount of assets which are likely to come to the petitioner’s hands, and
(e) when the application is for probate that the petitioner is the executor named in the will.
42. Another provision relied upon by Mr. Bhatia is Section 122 of the Indian Succession Act which pertains to onerous bequests. Any bequest which imposes are obligation on the legaty is termed as an onerous bequest Section 122 of the Indian Succession Act provides that the legaty can have the whole of it or nothing at all.
43. As to the objection that where there is a specific remedy provided and in the case Section 276 of the Indian Succession Act provides for probate the simplicitor suit for declaration is not maintainable. Ms. Deepika Marwah learned counsel for the plaintiff contended with vehemence that Section 276 is not a prohibitory Section not does it place any embargo upon the legaty to claim and establish the right of the legaty by filing a suit for declaration under Section 34 of the Specific Relief Act.
44. However this argument stems from the law that the probate court cannot confer title of the property to any one nor the grant of probate establishes more than the valid execution of the Will and appointment of the executor and the title has to be established in a civil Court.
45. The Hon’ble Supreme Court in this regard in a recent case in Ghulam Qadir v. Special Tribunal and Ors., has made the following observations :-
“There cannot be any dispute to the legal proposition that the grant of probate establishes conclusively as to the appointment of the executor and the valid execution of the Will. However, it does not establish more than the factum of the will as probate court does not decide question of title or of the existence of the property mentioned therein. If despite admitting the execution of the will and issuance of the probate a question arises as to its effect on the property of another person which his likely to be affected, nothing prevents the authorities under the J&K State Evacuees” (Administration of Property) Act to examine the will or the probate to that extent. It is established in this case that when the will was executed and registered the executant, namely, S had not become the owner of the disputed property. The disputed property at the time of
execution of the Will, admittedly, was vesting in the Custodian under the provisions of the Act.”
46. According to Ms. Marwah the principles of Section 122 are not applicable in this case as the clause in the Will is not an onerous one. Ms. Marwah further contended that Section 273 does not debar the petitioner from filing a simplicitor suit for declaration nor does it put an embargo on the right to file a suit for declaration in the civil Court to establish the right of the plaintiff under the Will as probate is not necessary in Delhi as held in Santosh Kakkar and Ors. v. Ram Prasad and Ors., 71 (1998) DLT 147 : 1998 (47) DRJ 860 wherein it was observed that no probate is required for will executed in Delhi. Executor or legatee can establish his rights without seeking probate.
47. Ms. Marwah tried to draw support from Kamla Devi v. Smt Prabhawatti Devi and Ors., JT 2001(3) SC 446 wherein the appellant had filed a suit for declaration when she was the owner of the house in dispute on the strength of the Will executed by her husband making her the absolute owner and since the defendants were interfering with her possession, injunction was sought and in the alternative possession. The suit was decreed by the trial Court. However the ratio is not applicable as issue before the Supreme Court pertained to the construction of the Will only and question of injunction and no other point.
48. The objection that by not seeking the relief of revocation of the Will set up by the defendant the plaintiff cannot be given a declaratory decree with regard to the validity of the Will set up by her has been sought to be repelled by Ms. Marwah contending that in case of two Wills the later one will always prevail and, therefore, it is not necessary for the beneficiary of the later Will to seek either cancellation or revocation of the Will executed earlier. The only onus upon the plaintiff is to establish the competence of the executor and the validity of the Will.
49. Ms. Marwah referred to Section 62 of the Indian Succession Act which provides that the Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. I the instant case the Will set up by the plaintiff refer to the earlier Will which has been set up by the defendant and as such a probate case was filed after the filing of the instant suit for declaration.
50. Lastly Ms. Marwah contended that in view of the fact that the plaintiff is in possession of the part of the suit premises whereas the part of the premises are in possession of the defendants 1 & 5 who were as per the Will conferred the right to live in the portions during their life time the instant suit is maintainable particularly where the obtaining of a probate is not necessary. She relied on Dr. Mrs. Joginder Kaur Malik and Anr. v. MalikAnup Singh, where the parties were Sikh and the suit for declaration was filed instead of filing petition for probate. It was held that section 214 only operated as a bar against passing of a decree of a deceased person for payment of his debt an no debtors having been imp leaded and that no provision of the Indian Succession Act is a bar to the present suit, which was a declaration suit.
51. As is apparent from the aforesaid provisions of the Indian Succession Act there is no provision under this Act entitling a person to file the suit for declaration except in the three eventualities viz. firstly where the party who has been evicted
from the possession; secondly a person must possess a letter of administration before filing any suit and thirdly where there is a contention that proceedings shall take as nearly as may be a form regular suit. None of the aforesaid three condition exists in the instant case. Apart from this, suit for declaration is also barred by the provisions of Section 34 of the Specific Relief Act, as such a suit is not maintainable on the basis of a unregistered. Will in respect of which no probate has been obtained nor letters of administration have been obtained. If the plaintiff is allowed to maintain such a suit it will be an unending process as even after obtaining a declaratory decree the plaintiff shall not have any consequential relief nor would be plaintiff be in a position to take back the possession from those who are in possession of the premises.
52. Next there is no doubt that the legaty has a right to disclaim the bequest but Section 122 extends to those cases which are attached with an obligation also. The obligation cast upon the plaintiff in the letter dated 6th August, 1990 relied upon and set up by the plaintiff was as under :-
“It shall be obligatory on the part of my younger son Manmohan Singh to perform marriage of my grand daughter Daminder Kaur who is presently living with her……….in a depicting manner.”
53. Manmohan Singh has admitted that Daminder Kaur has since been married but he did not spend anything on her marriage. The reasoning for not spending the money provided by the plaintiff is that this condition shall be fulfillled by him as and when the property is transferred in his name.
54. I am afraid such a defense is not recognizable in law. The doctrine that in case of onerous bequest the legaty can have whole of it or nothing at all is a universal doctrine. This doctrine is based on the principle that whenever any gift is accepted the onerous condition contained therein is also presumed to have been accepted by the legaty. Williams on Executors, 12th Edition, 985 is also of the view that the legaty cannot disclaim the onerous and accept the beneficial, unless there is a clear contrary intention expressed in the will. However there is no gainsaying the fact that the disclaimer has to be either by a conduct or expressed writing.
55. Cotton C.J. in Standing v. Bowring, (1885) 31 Ch D 282 has laid down the following principle in this regard :
“Where there is a transfer of property to a person, even although it carries with it some obligation, which may be onerous, it vests in him at once before he knows of the transfer subject to his right when informed of it to say, if he pleases, ‘I will not take it’. Until he repudiates it vests in him”.
56. In this regard reference may also be made to Krishanchander Krishan v. Govind Jyoti, AIR 1975 SC 975 wherein the following observations were made :-
“The rule that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden is attracted with full force in such like cases.”
57. The admission on the part of the plaintiff that he has not spent any money on the marriage of Daminder Kaur when examined in the light of the provisions of
Section 122 non-suits the plaintiff. It appears that the plaintiff being conscious of this fatal infirmity has chosen to file this nonest suit.
58. Further since Section 276 of the Indian Succession Act specifically provides for petition for probate any other remedy is forbidden. However to say that the probate is not necessary in Delhi and, therefore, the plaintiff has an alternative remedy by way of filing the suit is wholly untenable as the issue in the case is whether the suit for declaration is maintainable or not. In the absence of any explanation as to why the plaintiff did not seek a probate or letter of administration on the basis of Will when the law specifically provides such a remedy the plaintiff cannot maintain the simplicitor suit for declaration and, therefore, the ratio of the case relied upon by the learned counsel for the plaintiff in Santosh Kakkar and Ors. v. Ram Prasad and Ors., 71 (1998) DLT 147 : 1998 (47) DRJ 860 is not applicable at all.
59. It is beyond the pale of controversy that suit under Section 208, 214 and 295 can be filed only for obtaining a specific relief just like against dispossession but not in a suit for declaration by way of substitute to a probate petition.
60. Let us now dwell at the validity of the Will set up by the plaintiff.
61. Will is to be proved like any other document except to the extent of Section 65 of the Evidence Act which requires the examination of attesting witnesses if available. However, in case there are suspicion circumstances existing, then the propounder has to lead evidence so as to remove the suspicious. The initial burden in the plea of suspicious circumstance is heavy upon the beneficiary and does not stand discharged by merely proving the execution or even registration of the Will. It is the test of satisfaction of judicial conscious which is to be satisfied.
62. The above position of law has been reiterated in several judgments one of which is reported as H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors., . Observations of the Supreme Court in this regard need to be reproduced :-
“It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, on hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will have to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicious from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is no doubt true that on the proof of the signature of the deceased or his acknowledgement that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case.”
63. Some of the circumstances afflicting the genuineness of the Will propounded by the plaintiff which admit no suspicion are as under :-
(i) In the last para of the Will set up by the plaintiff Exhibit PW 1/1 account numbers of banks were not mentioned in entirety whereas these were mentioned in the Will set up by the defendants. The words etc. etc. appearing in this para are unknown to such a document. The testator has to be definite not only about the account nos. he was having but also about the details of the properties owned by him or her.
(ii) Exhibit DW 1/1 is the letter written by defendant Mohini to Land & Development Officer shows defendant’s fairness. Through this letter Mohini had asked to mutate properties in the names of LRs. of deceased Kartar Singh as per the Will. On the contrary there is no such fairness projected by the plaintiff in this regard.
(iii) Exhibit PW 10/D1 written by the plaintiff to the tenants occupying part of the premises shows that without mentioning the factum of Will alleged to have been executed by deceased in his favor he represented himself to the tenant as the exclusive owner of the premises and gave an impression to the tenant that he was the sole legal heir of deceased owner.
(iv) Exhibit R-2 is another letter written by the plaintiff to L& DO. On the one hand, defendant Mohini Gurbinder Kaur and Joginder Kaur claim themselves to be the legal heirs of deceased owner while on the other hand the plaintiff filed affidavits of these persons relinquishing their claims.
(v) In order to show that signatures of testator were forged, defendants produced hand writing expert. Not only the opinion of the hand writing expert is well considered and sound one but the comparison of signatures of the testator on both the Wills shows marked difference. It is not the case of the plaintiff that the registered Will set up by the defendants was forged Will. His challenge was that the same was obtained under coercion. Even otherwise signatures of the testator on registered Will set up by the defendants were similar to those appearing in various other documents viz. bank accounts form etc.
(vi) Witnesses produced by the plaintiff have admitted that deceased was having weak eye sight as he had undertaken various eye operations still they said that he had signed the document without using spects. So much so they did not know even that he had using spects.
(vii) Reasons for changing the Will as provided by the plaintiff was that his father told him that he had been made to sign some document by Mohini and he wanted to change the Will are difficult to accept.
64. One cannot be oblivious of the fact that deceased was completely neglected by the plaintiff. It was the defendant who not only was staying with him but also looking after him and taking care of all his needs. The deceased was so disenchanted with his son that he rewarded his daughter for the services rendered by her.
65. For the aforesaid reasons I feel hesitant to give precedence to the Will of the plaintiff over that of the defendant No. 5 as the former suffers from the vices of suspicious circumstances, non-existence of good ground for changing the earlier Will which was duly registered, marked difference between signatures appearing in the earlier Will and various other documents written by the deceased and the signatures appearing on the Will of the plaintiff, neglect of plaintiff of his father who was old and ailing and love and affection for defendant No. 5 because of her services by staying with him and non-performance of the obligation referred in the bequest set up by the plaintiff.
66. I deem it needless to deal with the issues independently as all the issues stand decided and determined in view of the aforesaid findings.
67. Overall effect of this discussion is that firstly the suit of the plaintiff in the present form is not maintainable and secondly the Will set up by the plaintiff has not been proved to be valid and legal and, therefore, cannot be acted upon for decreeing the suit. On the other hand, defendant No. 5 has succeeded in proving the Will executed in her favor and thereby has made herself entitled for obtaining probate. Probate petition No. 38/1992 is allowed. Probate is granted as prayed for.
Letter of administration be issued.