IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: December 03, 2010
Judgment delivered on: 08.03.2011
RFA No. 361/2004
Smt. Lalita Sharma ......Appellant
Through: Mr. Alok Kumar, Advocate.
Vs.
Smt. Sumitra Sharma ......Respondent.
Through: Mr. J.R. Bajaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J.
*
1. By this appeal filed under Section 96 of the Code
of Civil Procedure, 1908 the appellants seek to challenge the
judgment and decree dated 29.4.2004 passed by the learned
RFA 361/2004 Page 1 of 48
trial court in a suit filed by the respondents for partition and
declaration which was decreed in favour of the respondents
and against the appellants.
2. Brief facts of the case relevant for deciding the
present appeal are that Smt. Vidyawanti was the widow of
Sh. Brij Lal Sharma who was the owner of the property
bearing Quarter no.28/20, Old Rajinder Nagar, New Delhi
and after his death vide conveyance deed and lease dated
31.10.67 the said property was mutated in the name of Smt.
Vidyawanti. Smt. Vidyawanti died on 5.2.90 and was survived
by 4 sons and 1 daughter. The respondent no.1/plaintiff no. 1
is the widow of Sh.Yash Pal Sharma, one of the son‟s of
Smt. Vidyawanti and plaintiff no.2 and 3/respondent no.2 and
3 are the son and daughter of Sh.Yash Pal Sharma. The
appellant no.1 is the widow of defendant no.1 and appellant
no.2 is the widow of defendant no.2, appellant no.3 and 4
being the children of appellant no.2. The bone of contention
between the parties is that the appellants allege that
Smt.Vidyawanti died leaving behind a will dated 22.12.1987
RFA 361/2004 Page 2 of 48
bequeathing her property in favour of defendant no.1 and 2
while the respondent no.1 to 3 alleged that she died
intestate. Therefore a suit for partition and declaration of the
said property was filed by the respondent no.1 to 3 which
vide judgment and decree dated 29.4.2004 was decreed in
favour of the respondents and against the appellants.
Feeling aggrieved with the same, the appellants have
preferred the present appeal.
3. Mr. Alok Kumar, learned counsel for the appellants assailing the said judgment and decree dated 29.4.2004, vehemently argued that the appellants could successfully prove and establish the execution of the
holograph Will dated 22.12.1987 through defence evidence
especially with the help of the evidence of two attesting
witnesses and also by adducing the evidence of hand writing
expert who in his evidence has proved that the signatures
of the testator, late Smt. Vidya Wanti, on the holograph Will
were genuine after the same were compared with her
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admitted signatures on the rent agreements Ex. PW1/D1
and Ex. PW1/D2.
4. Learned counsel for the appellants further
submitted that the learned trial court has given unnecessary
weightage to the minor variations and discrepancies in the
evidence of the said two attesting witnesses who were cross
examined after a gap of 16 years. The contention of the
counsel for the appellant was that it is but natural that due
to such a long gap, minor discrepancies would arise in
natural course but such minor discrepancies could not have
the effect of disbelieving their testimonies deposing their
personal presence at the time of execution of the Will in
question and also their having duly witnessed the execution
of the said Will. In support of his argument, counsel for the
appellant placed reliance on the judgment of the Apex Court
in Shashi Kumar Banarjee Vs. Subodh Kumar Banarjee, AIR
1964 SCC 529.
5. Counsel for the appellants also submitted that the
learned trial court gave undue weightage to the insertion of
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the registration details of the lease deed by the testator in
the said holograph Will without taking the help of the said
registered lease deed. The contention raised by the counsel
was that there was nothing unusual on the part of the
testator to have remembered such details at the time of
setting down her hands at the holograph Will. Counsel for the
appellants also submitted that the respondent no.1 (plaintiff)
was duly confronted with the two documents i.e. Rent
agreement and agreement regarding security which were
duly signed and executed by late Smt. Vidya Wanti and
the same pertain to almost the same contemporaneous period
as that of the period of the Will and she had duly identified
the signatures of late Smt. Vidyawanti on the said two
documents proved on record as Ex. PW1/D2 and Ex. PW1/D2.
The contention of the counsel was that with the said
categorical admission of the respondent no.1 with regard to
the signatures of late Smt. Vidyawanti on the said two
agreements has not left any scope to dispute the signatures
of Smt. Vidyawanti on the holograph Will. Counsel also
submitted that the hand writing expert Mr. V.C. Misra
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DW-4, in his report proved on record as Ex.DW-4/1, further
proved this fact that the signatures of late Smt. Vidyawanti
on the Will duly tallied with her admitted signatures on rent
agreement and agreement regarding security receipt Ex.
PW1/D1 & Ex. PW1/D2 respectively. The contention raised by
the counsel was that the learned trial court committed grave
illegality in not only ignoring the report of the said hand
writing expert i.e. Ex. DW-4/1 but also ignoring the
admission of the respondent no.1 with regard to the
signatures of Smt.Vidyawanti on Ex. PW1/D1 & Ex.
PW1/D2 on the wrong analogy that the said documents could
not be looked into for any purpose, the same being beyond
pleadings.
6. Counsel further submitted that the appellants
were well within their legal right to confront the
respondent No. 1 with the said documents Ex. PW1/D1 and
Ex. PW1/D2 in terms of Order VIII Rule 1A(4) CPC and that
no objection was raised by the respondents when the said
documents were exhibited in the cross-examination of
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respondent no.1. Counsel also submitted that the appellants
were not required under law to have pleaded those
documents in their written statement as under Order VI
Rule 2 CPC, the pleadings are required to contain only a
concise statement of material facts and not evidence. In
support of his argument counsel placed reliance on the
judgment of Gujarat High Court in Amit M. Pathakji Vs.
Bhavnaben Amitkumar Pathakji AIR 2007 Guj 192. Counsel
for the appellants also submitted that the respondent no.1 in
para 13 of the plaint herself admitted the fact that the first
floor of the suit property was under the tenancy of a tenant
namely, Sh. Vinod Kukreja, and therefore the confrontation of
those documents i.e. Rent agreement and agreement
regarding security in her cross-examination could not have
been of any surprise to the respondent No.1.
7. Based on the above submissions, counsel
submitted that the appellants fully succeeded in discharging
their onus on Issue No. 2 to prove the factum of execution of
the said holograph Will which was executed by late Smt.
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Vidyawanti in a natural course in the presence of two
witnesses and therefore, the learned trial court ought to have
decided the said issue in favour of the appellants and against
the respondents.
8. Counsel for the appellants further went on to
assail the findings of the learned trial court on Issue No. 3,
which relates to the affidavit dated 7.8.91 Ex. PW2/D2
alleged to have been executed by the respondent no.1
wherein in terms of clause 5, the respondent has confirmed
the fact of execution of the said Will and her no objection if
the said Will is acted upon. The contention raised by the
counsel was that the appellants had duly proved the
execution of the said affidavit by respondent no.1 by getting
the records summoned from the office of the L & D.O.
Counsel also submitted that the appellants also proved the
signatures of respondent no.1 on the affidavit through the
evidence of the hand writing expert who proved the
signature of the respondent no.1 by comparing her
signatures on the said affidavit i.e. Ex.PW2/D2 with her
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admitted signatures on the plaint and vakalatnama filed by
her before the learned trial court. Counsel also submitted
that the hand writing expert was not cross-examined by the
respondents to rebut his report pertaining to the signatures
of the respondent no.1 on the said affidavit. Counsel also
submitted that the learned trial court failed to give any
specific finding on the said affidavit filed by the respondent
no.1. Counsel also submitted that the said affidavit signed by
the respondent no.1 was duly attested by the Executive
Magistrate in the presence of the respondent no.1 and
therefore there was no room to doubt the execution of the
said affidavit. Counsel also submitted that the execution of
the said affidavit by respondent no.1 is a clear admission on
her part so far the execution of the said holograph Will by
late Smt. Vidyawanti is concerned and therefore the
importance of the said affidavit could not have been ignored
by the learned trial court. Counsel also submitted that the
failure on the part of the respondents to cross-examine the
said hand writing expert pertaining to the signatures of the
respondent no.1 on the affidavit was sufficient enough to
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prove the said document in view of the settled legal principle
that failure of the opponent to cross-examine the witness on
any material point would lead to acceptance of such a fact or
point. In support of his arguments, counsel for the appellants
placed reliance on the judgment in Sarwan Singh vs. State of
Punjab AIR 2002 SC 3652.
9. Based on the above submissions, counsel for the
appellants submitted that the appellants had successfully
proved the due execution and attestation of the Will dated
22.12.1987. Giving justification to divest the respondents
from the legacy of the said Will, counsel submitted that
during the lifetime of late Smt. Vidyawanti the respondents
took a separate residence while the appellants continued to
live with late Smt. Vidyawanti taking care of her and also
spending money towards the upkeep and development of the
property. Counsel thus submitted that the learned trial court
committed grave illegality in accepting the case of the
respondents while not giving credence to the unimpeached
RFA 361/2004 Page 10 of 48
evidence of the appellants proving the said holograph Will
dated 22.12.1987 Ex. DW1/1.
10. Opposing the present appeal, Mr. Bajaj, learned
counsel for the respondents fully supported the findings
given by the learned trial court in the impugned judgment.
Counsel submitted that the appellants failed to dispel various
suspicious circumstances surrounding the execution of the
said Will even including the signatures of late Smt.
Vidyawanti. The contention of the counsel was that late
Smt.Vidyawanti never used to sign as „Vidyawanti‟ and this
fact itself would clearly show that the appellants had
fabricated the said Will. Counsel for the respondents also
submitted that the admission on the part of the respondent
no.1 with regard to the fact of admitting the signatures of
late Smt. Vidyawanti on rent agreement and agreement
relating to security Ex. PW1/D1 and PW1/D2 have to be read
as a whole and not in isolation. Counsel also submitted that
the respondents had raised objections to the exhibition of the
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said documents in the cross-examination of PW-1 i.e.
respondent no.1.
11. I have heard learned counsel for the parties at
considerable length and gone through the records.
12. The main and crucial question which falls for
consideration in the present appeal is that whether the
propounders of the Holograph Will i.e. appellants herein
could successfully prove on record the genuineness of the
said Will left by late Smt. Vidyawanti. In case this court
comes to the conclusion that the appellants were successful
in proving the genuineness of the said Will then all other
questions raised by the appellants would become secondary
and in the alternative if this Court comes to the conclusion
that the appellants have failed to prove the genuineness of
the said Will then also the other related issues such as
execution and signing of the affidavit dated 7.8.91 by
respondent No. 1 and the mutation of the said property in the
name of defendant Nos. 1 and 2 would become less relevant.
RFA 361/2004 Page 12 of 48
13. Under Section 2(h) of the Indian Succession Act,
1925, the Will is defined as “a legal declaration of the
intention of a testator with respect to his property which he
desires to be carried out into effect after his death”. As
would be evident from the definition of Will envisaged under
Section 2(h) of the Indian Succession Act, through a Will a
person can direct his/her estate to be distributed after his/
her death in a manner expressed by him/her in the said
document. In the absence of execution of a Will, the property
of a person devolves upon the legal heirs in the order of
succession as envisaged under Part V of the Indian
Succession Act. This legal right of the legal heirs to succeed
to any movable or immovable property left by the deceased
can be divested through the said instrument of Will,
otherwise under law the order of succession will prevail in
the absence of any Will left by a deceased person. The Will
is thus a very vital document through which the persons who
are otherwise legally entitled to succeed to any movable or
immovable assets can be divested of the same. The Wills
thus often become a cause of serious and nefarious legal
RFA 361/2004 Page 13 of 48
battle amongst the legal heirs and such a battle is not easily
resolved because the person who has signed the Will is no
more there to say that this was executed by him/her.
14. A Holograph Will is a Will written out entirely by
a testator in his own handwriting. A Holograph Will, like any
other Will requires attestation as per the mandate of Section
63 of the Indian Succession Act, 1925 and unless the
Holograph Will like any other Will fulfills the legal
requirement of its attestation by two witnesses, the Will
cannot be said to be validly executed. Hence as per
provisions of Section 63 of the Succession Act, for the due
execution of a will:
(1) the testator should sign or affix his mark to the will;
(2) the signature or the mark of the testator should be so
placed that it should appear that it was intended thereby
to give effect to the writing as a will;
(3) the will should be attested by two or more witnesses,
and
RFA 361/2004 Page 14 of 48
(4) each of the said witnesses must have seen the testator
signing or affixing his mark to the will and each of them
should sign the will in the presence of the testator.
15. It is also a settled legal position that the Will is
such a document which has to be proved by its propounder
beyond the shadow of any doubt or suspicious circumstances.
The principles which govern the proving of a Will are well
settled. The Constitution Bench of Hon‟ble Supreme Court
laid down the principles of proving a Will in the matter of
Shashi Kumar Banerjee & Ors. Vs. Subodh Kumar
Banerjee, AIR 1964 SC 529 and held as under:
“4. The principles which govern the proving of a will are well
settled. The mode of proving a will does not ordinarily differ
from that of proving any other document except as to the
special requirement of attestation prescribed in the case of a
will by Section 63 of the Indian Succession Act. 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. Where the
caveator alleges undue influence, fraud and coercion, the onus
is on him to prove the same. Even where there are no such
pleas but the 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
signature of the testator, the condition of the testator’s mind,
the dispositions made in the will being unnatural improbable or
RFA 361/2004 Page 15 of 48
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 suspicion should be completely removed
before the document is accepted as the last will of the testator.
If the propounder himself takes 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. It is in the light of these settled principles that
we have to consider whether the appellants have succeeded in
establishing that the will was duly executed and attested.”
16. Dealing with the legal position in the matter of proving
the Will which is surrounded by suspicious circumstances,
the Apex Court in H. Venkatachala Iyengar Vs. B.N.
Thimmajamma & Ors. AIR 1959 SC 443 (1) held as
under:
“21. There may, however, be cases in which the execution
of the will may be surrounded by suspicious circumstances.
The alleged signature of the testator may be very shaky and
doubtful and evidence in support of the propounder’s case
that the signature in question is the signature of the
testator may not remove the doubt created by the
appearance of the signature; the condition of the testator’s
mind may appear to be very feeble and debilitated; and
evidence adduced may not succeed in removing the
legitimate doubt as to the mental capacity of the testator;
the dispositions made in the will may appear to be
unnatural, improbable or unfair in the light of relevant
circumstances; or, the will may otherwise indicate that the
said dispositions may not be the result of the testator’s free
will and mind. In such cases the court would naturally
expect that all legitimate suspicions should be completely
RFA 361/2004 Page 16 of 48
removed before the document is accepted as the last will of
the testator. The presence of such suspicious circumstances
naturally tends to make the initial onus very heavy; and,
unless it is satisfactorily discharged, courts would be
reluctant to treat the document as the last will of the
testator. It is true that, if a caveat is filed alleging the
exercise of undue influence, fraud or coercion in respect of
the execution of the will propounded, such pleas may have
to be proved by the caveators; but, even without such pleas
circumstances may raise a doubt as to whether the testator
was acting of his own free will in executing the will, and in
such circumstances, it would be a part of the initial onus to
remove any such legitimate doubts in the matter.
22. Apart from the suspicious circumstances to which we
have just referred, in some cases the wills propounded
disclose another infirmity. Propounders themselves take a
prominent part in the execution of the wills which confer on
them substantial benefits. If it is shown that the propounder
has taken a prominent part in the execution of the will and
has received substantial benefit under it, that itself is
generally treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present such
suspicious circumstances that decisions of English courts
often mention the test of the satisfaction of judicial
conscience. It may be that the reference to judicial
conscience in this connection is a heritage from similar
observations made by ecclesiastical courts in England when
they exercised jurisdiction with reference to wills; but any
objection to the use of the word ‘conscience’ in this context
would, in our opinion, be purely technical and academic, if
not pedantic. The test merely emphasizes that, in
determining the question as to whether an instrument
produced before the court is the last will of the testator, the
court is deciding a solemn question and it must be fully
satisfied that it had been validly executed by the testator
who is no longer alive.
22. It is obvious that for deciding material questions of fact
which arise in applications for probate or in actions on wills,
no 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 has 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 suspicions from the
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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 quite true that, as observed by Lord Du Parcq in Harmes v.
Hinkson “where a will is charged with suspicion, the rules
enjoin a reasonable scepticism, not an obdurate persistence
in disbelief. They do not demand from the Judge, even in
circumstances of grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to the
truth”. It would sound platitudinous to say so, but it is
nevertheless true that in discovering truth even in such cases
the judicial mind must always be open though vigilant,
cautious and circumspect.”
(emphasis supplied)
17. In the matter of Joyce Primrose Prestor Vs.
Vera Marie Vas & Ors., (1996) 9 SCC 324, the Hon‟ble
Apex Court took a view that in the case of holograph Will
the presumption is all the more a greater presumption and
held as under:
12. While the presumption in the case of ordinary Wills is as
stated above, in the case of “holograph Wills”, the presumption is
all the more – a greater presumption. Ex.P-1 is a “holograph will”.
It is one which is wholly in the handwriting of the testator. The
Calcutta High Court Ajit Chandra Majumdar v. Akhil Chandra
Majumdar : AIR1960Cal551 stated about such a Will, thus:
The whole of this Will was written in the hand by the
testator himself in English. The handwriting is clear
and firm. The law makes a great presumption in favour
of the genuineness of a holograph will for the very
good reason that the mind of the testator in physically
writing out his own Will is more apparent in a
holograph will than where his signature alone appears
to either a typed script or to a script written by
somebody else.
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The writing of the Will and Signature of the testator are admitted.
There is also due and proper attestation in accordance with the
relevant statutory provisions. No suspicious circumstance
appears on the face of the document, Ex.P-1. The Will appears to
be moderate and rational. Viewed from the above angle, there is
a great presumption – even bordering on actual proof of the due
execution and attestation of the Will.
……
15. In applying the above general principles to particular cases,
the nature of the Will, the pleadings of the parties in the case,
facts admitted or proved and the presumptions available in law,
will have to be carefully given effect to. The case of a “holograph
Will” which is admittedly in the handwriting of the testator, is a
special case which will require a different approach in considering
the evidence in the case to find whether the Will has been duly
executed and attested. The approach to be made in such cases
has been stated by the Constitution Bench in Shashikumar
Banerjee’s case, (supra) at page 532 paragraph (5). In that case,
the Court referred to certain undisputed preliminary facts as
follows : The testator, a well-known wealthy lawyer, who died at
the age of 97, had executed a Will when he was 93 years old. He
had made provision for his heirs by executing a number of
documents, and the Will referred to the remaining property. The
Will was witnessed by two persons. The entire Will was in the
handwriting of the testator, corrected in various places and
corrections were initialled by him. It was admitted that the
signature at the bottom of the Will was of the testator. The
dispositions were very clear and detailed and it could not be said
to be an unnatural document. There was no evidence to show
that the profounder took any part in the execution of the Will.
After stating these preliminary facts, the Court stated the
approach to be made in the case of a “holograph Will”, thus;
Further the fact that the will is a holograph will and
admittedly in the hand of the testator and in the last
paragraph of the will the testator had stated that he had
signed the will in the presence of the witnesses and the
witnesses had signed it in his presence and in the presence
of each other raise strong presumption of its regularity and
of its being duly executed and attested. On these facts
there is hardly any suspicious circumstance attached to this
will and it will in our opinion require very little evidence to
prove due execution and attestation of the will. There is no
doubt about the genuineness of the signature of the
testator, for it is admitted that the signature at the foot of
the will is his. The condition of the testator’s mind is alsoRFA 361/2004 Page 19 of 48
not in doubt and he apparently had full testamentary
capacity right upto March 1947, even though he was an
oldman of about 97 when he died on April 1, 1947 There is
nothing to show that the dispositions were not the result of
the free will and mind of the testator. Further, the
profounder (namely, the appellants) had nothing to do with
the execution of the will and thus there are really no
suspicious circumstances at all in this case. All that was
required was to formally prove it, though the signature of
the testator was admitted and it was also admitted that the
whole will was in his handwriting. It is in the background of
these circumstances that we have to consider the evidence
of the two attesting witnesses…
………
The question that arose for consideration in this case, is largely
one of fact, the decision of which depended upon the appreciation
of the oral evidence adduced in the case. The weight or
importance that should be given to the finding of the trial Judge
who had occasion to watch the demeanour of the witnesses and
assess their credibility and the restraints that should be observed
by the Appellate Court in such cases, have been stated by this
Court in more cases than one, vide Sarju Pershad Ramdeo Sahu
v. Jwaleshwari Pratap Narain Singh and Ors. : [1950]1SCR781 ,
Madhusudan Das v. Smt. NarayaniBai and Ors. : [1983]1SCR851
, Etc. It need hardly be stated that the onus is on the appellant to
show that the judgment appealed against is wrong. It is for the
appellant to show where the assessment of the court below has
gone wrong and not merely seek a reassessment of the evidence.
We regret to note that the High Court in the instant case, has not
at all borne in mind the above salient principles of law in
reappreciating the entire evidence in this case through a
microscope, as it were, and drawing its own “inferences” and
“impressions”.
18. As would be seen from the aforesaid principles of
law laid down by the Hon‟ble Apex court, the conscience of
the Court has to be satisfied by the propounder of the Will so
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as to dispel any suspicion or unnatural circumstances
surrounding such Will. The existence of suspicious
circumstances makes the onus of proof very heavy on the
propounder of the Will. Before any Will is accepted as a
genuine Will left by the testator, the propounder is required
to remove all such suspicious circumstances surrounding the
Will. Here the pivotal question is with regard to the
authenticity of the signatures of the testator and as laid down
by the Apex Court in the case of Pushpavathi vs.
Chandraraja Kadamba (1973) 3 SCC 291 that where the
signature of the testator is challenged as a forged signature
and the Will does not come from the custody of a public
authority or a family Solicitor the fact that the dispositions
made in the Will were unnatural, improbable or unfair, would
undoubtedly create some doubt about the Will, especially,
when the document is unregistered and comes from the
custody of a person who is the major beneficiary under the
Will. Thus in the background of these circumstances, the
appellants being the propounders of Will have a very heavy
onus to discharge.
RFA 361/2004 Page 21 of 48
19. In the present case, the appellants are the
propounders of the Will of late Smt.Vidyawanti. It is not in
dispute between the parties that the name of the testator was
“Smt.Vidyawanti” and not “Smt. Vidyawati”. The Will
propounded by the appellant is a holograph Will which means
that the Will was written by the testator Smt. Vidyawanti
herself. The suspicious circumstances which abounds the said
Will can be enumerated as follows:-
(i) The Will has been executed on 22.12.1987 on a
stamp paper of Rs.2/- which was purchased in the
name of Smt. Vidyawanti on 13.08.1987. The
suspicious circumstance which arises in this
regard is that there is no requirement of a Will
being reduced on a stamp paper, although there is
no bar as well, but the question is why the Will
was reduced on a stamp paper which was
purchased on 13.08.1987 not for the purposes of
using the same for the execution of the Will.
RFA 361/2004 Page 22 of 48
(ii) The propounders of the Will have not brought on
record the handwriting of the testator so as to get
it compared with the handwriting on the
holograph Will through a handwriting expert.
(iii) The failure of the appellants to produce on record
any document to show that late Smt. Vidyawanti
used to append her signature as Vidyawanti. This
suspicion arises on account of the fact that on the
lease deed and the conveyance deed proved on
record as Ex DW 3/1 and DW 3/2 Smt.Vidyawanti
had signed as „Vidyawati‟ and not as „Vidyawanti‟ .
(iv) To give the exact registration details of the lease
deed in the said holograph Will without taking the
help of or consulting the lease deed.
(v) Use of different pen and different ink for writing of
the holograph Will and for signing the said Will.
20. Besides the above suspicious circumstances, there
are other surrounding circumstances as well which create a
RFA 361/2004 Page 23 of 48
doubt about the genuineness of the said Will. Material
discrepancies in the statements of the two attesting
witnesses, DW1 and DW2 also create enough suspicion about
the genuineness and authenticity of the said holograph Will
Ex.DW-1/1. The appellants i.e. the propounders of the
holograph Will have not succeeded to dispel the said
suspicious circumstances and, therefore, such suspicious
circumstances clearly create a doubt about the genuineness
and authenticity of the said holograph Will. Dealing with the
above enumerated circumstances, firstly no explanation has
come forth from the side of the appellants as to why the Will
was executed on a stamp paper which was not even
purchased for the purpose of using the same for execution of
the said holograph Will. There is no requirement in law that a
Will has to be executed on a stamp paper, yet considering the
fact that an old stamp paper was used by the testator,
certainly an explanation was called for from the propounders
of the said Will as to why the said Will was written on a
stamp paper not meant for the said purpose.
RFA 361/2004 Page 24 of 48
21. Secondly, the appellants have also not produced
any of the writing of late Smt. Vidyawanti so as to prove the
writing of late Smt.Vidyawanti on the said holograph Will
Ex. DW1/1 as the comparative writing of late Smt. Vidyawanti
could have been the best proof to prove the fact that the said
Will was written by late Smt.Vidyawanti herself. However, it
is not in dispute between the parties that late Smt.
Vidyawanti was an illiterate lady as she had studied up to 3 rd
or 4th standard. As per the appellants and the two attesting
witnesses, late Smt. Vidyawanti had written the said will
herself in their presence. Although, self written will by the
testator can be taken to be more genuine in comparison to
the typed out wills but for proving the hand written will or
holograph will the hand writing of the testator either should
not be in dispute and if it is in dispute then the propounder
has to prove such writing of the testator with the help of
some cogent evidence including some other writings of the
testator. No such evidence was led by the propounders in
the present case to prove the hand writing of the testator
and therefore the propounders failed to dispel the said
RFA 361/2004 Page 25 of 48
suspicious circumstance as to whether the writing on the
holograph will was that of Smt. Vidyawanti or not.
22. The appellants have further failed to produce any
cogent and reliable evidence on record to prove the fact that
late Smt. Vidyawanti used to sign as Vidyawanti and not as
Vidyawati. The handwriting expert examined by the
appellants failed to carry out any comparison to compare the
signatures of the testator on the Ex.DW-1/1 with her admitted
signatures on the lease deed and the conveyance deed
proved on record as Ext.DW-3/1 and DW-3/2. No doubt, DW-4
Shri V.C.Mishra in his report proved on record as Ex.DW-4/1
has given the opinion to confirm the signatures of late
Smt.Vidyawanti on the holograph Will as genuine after
comparing the same with her signatures on the rent
agreement and agreement regarding security proved on
record as Ex. PW-1/D1 and Ex. PW-1/D2, but certainly the
comparison of signatures of late Smt.Vidyawanti on the
holograph Will with her admitted signatures on Ex.DW-3/1
and DW-3/2 would have helped the appellants to prove the
RFA 361/2004 Page 26 of 48
authenticity and genuineness of her signatures. Both the
lease deed and the conveyance deed are registered
documents duly executed by the President of India in favour
of late Smt.Vidyawanti and, therefore, the genuineness and
authenticity of the signatures of late Smt.Vidyawanti cannot
be of any doubt so far these two documents are concerned.
So far the rent agreement and the agreement related to
security Ex. PW1/D1 and PW1/D2 are concerned, the
signatures of late Smt. Vidyawanti were confronted by the
appellants during the cross-examination of respondent no.1
and the admission on the part of respondent no.1 of such
signatures of late Smt.Vidyawanti on these documents in any
case cannot be put at a higher pedestal than the failure of the
appellants to prove the signatures of late Smt. Vidyawanti on
the holograph Will on comparing the same with her
signatures on the registered documents i.e. the lease deed
and the conveyance deed Ex. DW 3/1 and DW 3/2.
23. The learned counsel for the appellant also laid
much emphasis on the fact that PW-1 Smt.Sumitra Sharma in
RFA 361/2004 Page 27 of 48
her cross-examination has admitted that the signatures on
the agreements Ex.PW-1/D1 and PW-1/D2 are the signatures
of Smt.Vidyawanti and, therefore, such an admission on the
part of the respondent/plaintiff was good enough to prove the
signatures of late Smt.Vidyawanti on the Will Ex DW 1/1. This
argument of learned counsel for the appellant was not
accepted by the learned trial court on the premise that the
admission must be read as a whole, as the law does not
permit an admission to be truncated and piecemeal. The
learned trial court also referred to the written statement filed
by the appellants wherein no such plea was taken by them
that such an agreement was signed by late Smt.Vidyawanti in
favour of the tenants during her lifetime. It is an admitted
fact that the appellants did not refer to any such rent
agreement executed by late Smt. Vidyawanti in favour of the
tenant in their written statement, but at the same time this
Court is not in agreement with the finding of the learned trial
court that since in the written statement those agreements
were not referred to by the appellant, therefore, the same
cannot be looked into for any purpose whatsoever. The
RFA 361/2004 Page 28 of 48
counsel for the appellant placed reliance on the judgment of
the Gujarat High Court in Amit M. Pathakji (supra) to
support his argument that the finding arrived by the learned
court is perverse. Undoubtedly order VIII Rule 1A of CPC
casts an obligation on the defendant to produce documents
upon which relief is claimed but sub rule 4(a) of rule 1A of
order VIII carves out an exception which gives the right to
the defendant to produce any document for presenting to the
plaintiff‟s witnesses. The judgment cited by the appellant
above reiterates the said legal position and applies the same
not only to the plaintiffs‟ witnesses but also to the plaintiff
himself. In the present case, the appellants have confronted
these documents to the respondent No.1/plaintiff No.1 in her
cross-examination and such a right to confront any document
to a witness certainly flows from Order VIII Rule 1A(4) of the
CPC. To this extent, the finding of the learned trial court is
incorrect and cannot be appreciated. However, this Court
does not find anything wrong in the reasoning given by the
learned trial court where it said that the admission must be
read as a whole and not in a truncated and piecemeal
RFA 361/2004 Page 29 of 48
manner. The respondents/plaintiffs in their plaint themselves
have taken a very categorical stand that late Smt.Vidyawanti
never wrote, signed or executed the alleged holograph Will.
They have also said that the alleged signatures of late
Smt.Vidyawanti as „Vidyawanti‟ appearing on the alleged
Will differs from her signatures as „Vidyawati‟ appearing on
the lease deed and conveyance deed. They have further
averred that as a matter of fact Smt. Vidyawati never signed
as „Vidyawanti‟ and she always signed as „Vidyawati‟. In
her cross examination, PW-1 Smt. Sumitra Sharma also
deposed that her mother-in-law used to append her signature
as „Vidyawati‟ only. It would be thus evident that the
respondent Smt. Sumitra Sharma was consistent in her entire
deposition that her mother-in-law Smt. Vidyawanti used to
sign only as „Vidyawati‟ and not as „Vidyawanti‟. This
consistent stand of the respondent No.1 in the plaint, in her
examination-in-chief and in her cross-examination thus
cannot be ignored when pitted against her said admission of
identifying the signatures of late Smt.Vidyawanti on the rent
agreement and agreement regarding security.
RFA 361/2004 Page 30 of 48
24. It is also pertinent to mention that the appellant in her
cross examination stated that Smt. Vidyawanti used to sign
both as „Vidyawati‟ and „Vidyawanti‟ but however the
appellants have failed to produce any cogent evidence before
the court to prove this fact. So far the signatures of late
Smt.Vidyawanti as appearing on the registered lease deed
and conveyance deed are concerned, the same have not been
denied by the appellants and on both these documents late
Smt.Vidyawanti had signed as „Vidyawati‟. Now the question
whether late Smt.Vidyawanti used to sign as Vidyawanti as
well, the only document which was produced by the
appellants at the stage of cross-examination of the
respondent No.1 was the rent agreement and the agreement
relating to security and as already discussed above, the
authenticity of these documents cannot be parallel to the
documents produced on record by the respondent i.e.
registered lease deed and conveyance deed. Certainly, the
appellants could have produced some more strong and
reliable evidence to prove this fact that late Smt.Vidyawati
used to sign as Vidyawanti as well. No explanation has come
RFA 361/2004 Page 31 of 48
forth from the side of the appellants that as to why they did
not summon the pension records from the State Bank of
India, Padam Singh Road, Karol Bagh, New Delhi, where the
husband of late Smt. Vidyawanti being a govt. servant was
maintaining his pension account and which was being
maintained by late Smt.Vidyawanti herself after his death.
The appellant No.1 Smt. Lalita Sharma in her cross-
examination has disclosed this fact that the account in the
State Bank of India was in the name of Smt. Vidyawanti and
she herself used to operate that account. She also stated that
she may have some documents at the residence containing
the number of the said bank account. It would be important
to reproduce the following lines from her cross-examination
as follows:-
“My father-in-law was a Govt. servant. Vidyawanti used to
get pension after the death of Sh. Brij Lal Sharma and she
used to deposit the same in an account with State Bank of
India, Padam Singh Road, Karol Bagh, New Delhi. That
account was in the name of Vidyawanti and she herself used
to operate that account. I do not remember the number of
the said bank account. However, I may have some
documents at my residence containing the number of the
said bank account.”
RFA 361/2004 Page 32 of 48
It would be manifest from above that had Smt. Vidyawanti
been signing in two different manners i.e. Vidyawanti and
Vidyawati, then her signatures appearing in her pension
account would have clearly thrown some light on the said
issue and because of withholding of the same by the
appellants, an adverse inference can be drawn against the
appellants. Hence, it can be safely assumed that the
production of the said records by the appellants from the
State Bank of India would have proved fatal to the case set
up by the appellants in their defence. It is otherwise also not
a matter of course and rather it can be considered as an
unusual situation that any person is signing in two different
manners. This aspect arouses more curiosity in the face of
the fact that an old lady who had to frequently sign some
documents for receiving pension of her late husband would
append her signatures differently on different documents.
25. Another suspicious circumstance which stares on
the validity and genuineness of the said holograph Will is that
how late Smt. Vidyawanti could give the registration details
RFA 361/2004 Page 33 of 48
of the lease deed without consulting the said deed or its copy
thereof. Both the attesting witnesses i.e. DW-1 and DW-2 in
their respective depositions took a stand that late Smt.
Vidyawanti had given the details of the registration of the
lease deed without consulting any document. The
registration details of the lease deed given by late Smt.
Vidyawanti in the said holograph Will are; Date 27.1.1968
in Book No. 490, Volume No. 1908 on pages 50 to 52. It is
inconceivable that an old lady of 62 years who was
practically an illiterate lady could remember the registration
details of the lease deed by heart and thus writing of such
registration details without consulting the actual document
also creates suspicion about the genuineness of the said
holograph Will.
26. The above suspicion regarding the intrinsic evidence
with regard to the will and as rightly held by the learned trial
court is fortified by the fact that a different pen was used to
write and sign the said document which is highly improbable
as the executant would normally sign the will with the same
RFA 361/2004 Page 34 of 48
pen after writing out the contents thereof and then pass it on
to the attesting witnesses which is not the situation in the
present case.
27. With regard to the discrepancies in the depositions of
the two attesting witnesses i.e. DW-1 Shri Rattan Lal and
DW-2 Shri S.K. Bhatia, the argument of the counsel for the
appellants was twofold; firstly was that such discrepancies
were minor in nature and secondly that with such a long gap
it was but natural for such discrepancies to crop up. To
examine the argument of the counsel for the appellants, it
would be apt to refer to the discrepancies which surfaced in
the cross-examination of the said two attesting witnesses.
DW-1 Shri Rattan Lal in his deposition deposed as under:
“………Shri S.K. Bhatia was already sitting
there when I reached at 28/20, Old Rajinder Nagar.
………………………..
I had signed the will as attesting witness
before it was signed by Smt. Vidyawanti. Thereafter
Vidyawanti signed the will and lastly Shri S.K. Bhatia
signed the will.”
RFA 361/2004 Page 35 of 48
DW-2 Shri S.K. Bhatia in his cross-examination deposed as
follows:
“……..When I went there Shri Rattan Lal was
at the residence of Vidya Wanti. Again said myself and
Rattan Lal entered the house of Vidya Wanti almost
simultaneously.
…….She took out a stamp paper which she
already had and wrote the contents of her will in her own
hand writing, signed the same. Then it was signed by Shri
Rattan Lal and after him I signed that will as one of the
attesting witnesses after going through the contents of the
will.”
28. Under Section 63 (c) of the Indian Succession Act
1925, as discussed above, an unprivileged will is required to
be attested by two or more witnesses and each of such
witnesses must have seen the testator sign or affix his mark
to the will or have received from the testator his personal
knowledge of his signatures or mark on the will. Section
63(c) reads as under:
“63 (c) The will shall be attested by two or more
witnesses, each of whom has seen the testator sign or
affix his mark to the will or has seen some other person
sign the will, in the presence and by the direction of theRFA 361/2004 Page 36 of 48
testator, or has received from the testator a personal
acknowledgment of his signature or mark, or of the
signature of such other person; and each of the
witnesses shall sign the will in the presence of the
testator, but it shall not be necessary that more than one
witness be present at the same time, and no particular
form of attestation shall be necessary.”
As would be evident from the plain language of the aforesaid
provision, the testator must sign the will in the presence of
the attesting witnesses or who personally acknowledge his
signatures to the attestators. Attestation as provided by the
section is thus not an empty formality . It means signing a
document for the purpose of testifying of the signatures of
the executant. The attesting witness should put his signature
on the will animo attestandi which means that the attestator
has personally seen the testator signing the will or he has
personally received acknowledgment of his signatures. It
would be pertinent to refer to the judgment of the Apex Court
in the case of N.Kamalam vs. Ayyasamy (2001) 7 SCC 503
wherein the court has held that:
“The Latin expressions onus probandi and animo attestandi are
the two basic features in the matter of the civil court‟s exercise
of testamentary jurisdiction. Whereas onus probandi lies inRFA 361/2004 Page 37 of 48
every case upon the party propounding a will, the expression
animo attestandi means and implies animus to attest: to put it
differently and in common parlance, it means intent to attest.
As regards the latter maxim, the attesting witness must
subscribe with the intent that the subscription of the signature
made stands by way of a complete attestation of the will and
the evidence is admissible to show whether such was the
intention or not.
………………….
The signature of the attesting witness as noticed above on a
document, requiring attestation (admittedly in the case of a will
the same is required), is a requirement of the statute, thus
cannot be equated with that of the scribe. The Full Bench
judgment of the Madras High Court in H. Venkata Sastri and
Sons v. Rahilna Bi wherein Ramachandra Iyer, J. speaking for
the Full Bench in his inimitable style and upon reliance on Lord
Campbell‟s observation in Burdett v. Spilsbury has the following
to state pertaining to the meaning to be attributed to the word
“attestation”: (AIR pp. 113-14, paras 3-4)
“(3) … The definition of the term „attested‟ which is
almost identical with that contained in Section 63(c)
of the Indian Succession Act, has been the result of
an amendment introduced by Act 27 of 1926. Prior
to that amendment it was held by this Court that the
word „attested‟ was used only in the narrow sense of
the attesting witness being present at the time of
execution. In Shamu Patter v. Abdul Kadir Ravuthan
the Privy Council accepted the view of this Court that
attestation of a mortgage deed must be made by the
witnesses signing his name after seeing the actual
execution of the deed and that a mere
acknowledgement of his signature by the executant
to the attesting witness would not be sufficient. The
amending Act 27 of 1926 modified the definition of
the term in the Transfer of Property Act so as to
make a person who merely obtains an
acknowledgement of execution and affixed his
signature to the document as a witness, an
attestor…….. It is, therefore, necessary first to
ascertain the meaning of the word „attest‟
independent of the statute and adopt it in the light of
the extended or qualified meaning given herein. The
RFA 361/2004 Page 38 of 48
word „attest‟ means, according to the Shorter Oxford
Dictionary „to bear witness to, to affirm the truth of
genuineness of, testify, certify‟. In Burdett v.
Spilsbury Lord Campbell observed at p. 417:
„What is the meaning of an attesting witness to a
deed? Why, it is a witness who has seen the deed
executed, and who signs it as a witness.‟
The Lord Chancellor stated,
„the party who sees the will executed is in fact a
witness to it, if he subscribes as a witness, he is then
an attesting witness‟.
The ordinary meaning of the word would show that
an attesting witness should be present and see the
document signed by the executant, as he could then
alone vouch for the execution of the document. In
other words, the attesting witness must see the
execution and sign. Further, attestation being an act
of a witness, i.e., to testify to the genuineness of the
signature of the executant, it is obvious that he
should have the necessary intention to vouch it.
(4) After the amendment of Section 3 by Act 27 of
1926, a person can be said to have validly attested
an instrument, if he has actually seen the executant
sign, and in a case where he had not personally
witnessed execution, if he has received from the
executant a personal acknowledgement of his
signature, mark etc. Thus of the two significant
requirements of the term „attest‟, namely, (1) that
the attestor should witness the execution, which
implies his presence, then, and (2) that he should
certify or vouch for the execution by subscribing his
name as a witness, which implies a consciousness
and an intention to attest, the amending Act
modified only the first; the result is that a person
can be an attesting witness, even if he had not
witnessed the actual execution, by merely receiving
personal acknowledgement from the executant of
having executed the document and putting his
signature. But the amendment did not affect in any
way the necessity for the latter requirement, namely,
RFA 361/2004 Page 39 of 48
certifying execution which implies that the attesting
witness had the animus to attest.”
29. Hence, in the light of the aforesaid principles
relating to attestation the factual scenario has to be analysed.
In the facts of the present case, DW-1 Shri Rattan Lal in his
cross-examination has deposed that he had first signed the
will and later it was signed by the testator Smt. Vidyawanti.
The said witness nowhere has deposed that late Smt.
Vidyawanti had signed the will in his presence and in front of
him.The requirement of Section 63 (c) is that the attestator
must see the testator signing the will and not vice-versa. So
the signing of DW-1 as an attesting witness on the
holograph Will prior to the signing of the testator late Smt.
Vidyawanti cannot be treated as a minor discrepancy but is
rather a major flaw as signing of the attesting witness Shri
Rattan Lal prior to the signing of the will by the testator
does not fulfill the mandate and requirement of Section
63(c) of the Indian Succession Act,1925. Inconsistency in
the deposition of the two witnesses where they do not
RFA 361/2004 Page 40 of 48
support each other about the fact as to who had put his
signatures first and also about who reached first and who
reached later at the premises of the testator will create
enough doubt on the genuineness of the said will.
30. The counsel for the appellants placed reliance on
the judgment of the Apex Court in the case of Shashi Kumar
(supra) in support of his argument that minor variations in
the depositions of the attesting witnesses would not go to the
extent to disregard their testimony. The judgment in the case
of Shashi Kumar has to be appreciated with its peculiar facts
and circumstances as there it was not the fact of the
execution of the will which was under scanner but the date of
execution. In that case it was an admitted fact that the Will
was written in the handwriting of the testator and the
signatures on the said will were also the admitted signature
of the testator coupled with the fact that in the last
paragraph of the will the testator had stated that he had
signed the will in the presence of the witnesses and the
witnesses had signed it in his presence and thus it is these
RFA 361/2004 Page 41 of 48
factors which led to the court to overlook the discrepancies
arising in the depositions of the attesting witnesses. It is also
important to note that in that case the propounders had
nothing to do with the execution of the will and thus there
were actually no suspicious circumstances at all in that case.
In the background of such facts the evidence of the attesting
witnesses were considered and the intrinsic evidence relating
to the contents of the will also pointed towards the execution
of the will. Whereas in the facts of the case at hand the
handwriting of the testator and what are her admitted
signatures are itself in dispute coupled with the fact that the
intrinsic evidence with regard to the contents of the will also
point towards the defendants being the beneficiaries. With all
these circumstances being suspicious and untrustworthy
towards the execution of the will, the evidence of two
attesting witnesses had to be examined. The discrepancy is
with regard to the sequence in which the two witnesses DW1
and DW2 reached the house of the testator and also the
sequence of the appending of the signatures of the three
persons. The aforesaid discrepancies therefore, cannot be
RFA 361/2004 Page 42 of 48
treated as minor discrepancies. This court also does not find
any substance in the plea raised by the counsel for the
appellant that due to lapse of time such discrepancies are
bound to occur in natural course. Such discrepancies in any
circumstances cannot be brushed aside by dubbing them
conjectural.
31. Therefore, the coagulated situation that emerges
from the above stated is that the disputed signatures of late
Smt.Vidyawanti on the alleged Will appeared as „Vidyawanti‟
while on the lease deed and conveyance deed, both being
registered documents, her signatures appeared as
„Vidyawati‟ whereas on the agreements confronted by the
respondent No.1 in the cross examination and proved on
record as Ex. PW1/D1 and Ex. PW 1/D2 the signatures of late
Smt.Vidyawanti appeared as „Vidyawanti‟. The appellants
have not disputed the signatures of late Smt.Vidyawanti on
the lease deed and conveyance deed and as already discussed
above, her signatures on the lease deed and conveyance deed
can be taken as more authentic than her signatures
RFA 361/2004 Page 43 of 48
appearing on the rent agreements with the tenants. In the
background of such facts, where the appellants have failed to
dispel such suspicious circumstances surrounding the
execution of the alleged holograph Will by late Smt.
Vidyawanti, this court is of the considered view that the said
Holograph Will Ex. DW1/1 cannot be taken to be the Will
executed by Smt. Vidyawanti.
32. So far the plea raised by the counsel for the
appellants that execution of the affidavit dated 7.8.91
Ex. PW 2/D2 by the respondent No.1 herself which was
alleged to have been attested by the Executive Magistrate is
concerned, this court finds the said plea devoid of any merit.
The contention of the counsel for the appellant was that the
handwriting expert had proved the signatures of the
respondent no.1 on the affidavit by comparing them with the
admitted signatures of the respondent on the plaint and
vakalatnama and as there was no cross examination of the
expert on this point therefore the same is accepted as per the
judgment in the case of Sarwan Singh (supra).
RFA 361/2004 Page 44 of 48
Undoubtedly, there can be no dispute with the legal position
reiterated in the abovesaid judgment that whenever the
opponent has declined to avail himself of the opportunity to
put his case in cross-examination it must follow that the
evidence tendered on that issue ought to be accepted. But
this would not be of any help to the case of the appellant as
the evidence of the handwriting expert, even if accepted
going by this legal position, is rendered futile in the event the
appellants have not been able to prove the execution of the
Will itself. Hence, the execution of the said affidavit by the
respondent is as doubtful as the execution of the Will by late
Smt. Vidyawanti. As already discussed above, this court could
have believed the execution of the said affidavit by the
respondent-plaintiff only when the appellants could have
succeeded in establishing the genuineness and authenticity
of the holograph Will. Once the appellants have not
succeeded in establishing the genuineness of the said Will
and the fact that the respondents throughout have been
disputing the execution of any such Will by late Smt.
Vidyawanti, there could have been no occasion for the
RFA 361/2004 Page 45 of 48
respondent plaintiff to execute such affidavit forsaking her
right in the said property in favour of the appellants. The
situation that emerges defies commonsensical notion that the
respondent after executing an affidavit admitting the
existence of a will which is in the favour of the defendants is
concurrently disputing the execution of the said will.
33. The delicate structure of proof evolved by a legally
trained mind cannot stand on a weak foundation. The
evidence produced must be weighty and persuasive and not
so frail which can be demolished by the pelting of stones of
suppositions and hypothesis. It is a settled legal position that
in civil matters one has not to prove the case beyond
reasonable doubt but the Court has to examine the facts
based on the preponderance of probabilities. It has also been
held by the Apex Court in the case of Anil Kak vs. Sharada
Raje (2008) 7 SCC 695 that the matters relating to
execution of wills and granting of probate are judgments in
rem and thus the court should satisfy its conscience before
passing an order. The court is expected to adopt a rational
RFA 361/2004 Page 46 of 48
approach while deciding matters of this nature and when it
has to satisfy its conscience, existence of suspicious
circumstances would play a prominent role in rendering the
decision. This court also in the case of Sanjiv Sapra vs.
State MANU/DE/2745/2009 after analyzing all the law on
the subject held that the usually it is the cumulative effect,
rather than a stray circumstance, which would weigh in
concluding that a will is shrouded in suspicion. Ultimately, it
is the conscience of the court, which should be satisfied that
the will is a genuine document, and expresses what is
intended by the testatrix or testator, apart from being
satisfied that the technical legal requirements mandated by
the joint operation of Section 63 of the Succession Act, and
Section 68 of the Evidence Act, are fulfilled. Thus adopting a
rational approach and taking into consideration the
preponderance of probabilities in the facts of the present
case, this Court is of the view that the appellants have failed
to prove on record with the help of any cogent evidence that
late Smt. Vidyawanti used to sign as Vidyawanti and not as
Vidyawati and once having taken such a view, the holograph
RFA 361/2004 Page 47 of 48
Will dated 22.12.1987 Ex. DW1/1 propounded by the
appellants cannot be accepted to be a genuine Will duly
signed by late Smt.Vidyawanti.
34. Taking into consideration the aforesaid totality of
the circumstances, this court does not find that late Smt.
Vidyawanti had executed the said holograph Will dated
22.12.1987, so as to bequeath her immovable property
bearing quarter no.28/20, old Rajinder Nagar, New Delhi in
favour of the husband of appellant no.1 and 2 (defendant No.
1 and 2) and hence is the judgment and decree dated 29.4.04
passed by the learned trial court is accordingly upheld.
35. In the light of the above discussion, this court does
not find any merit in the present appeal and the same is
hereby dismissed.
March 08, 2011 KAILASH GAMBHIR, J
RFA 361/2004 Page 48 of 48