{"id":115158,"date":"1998-09-17T00:00:00","date_gmt":"1998-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/surjit-kaur-vs-shri-sohan-singh-and-others-on-17-september-1998"},"modified":"2018-08-10T14:48:28","modified_gmt":"2018-08-10T09:18:28","slug":"surjit-kaur-vs-shri-sohan-singh-and-others-on-17-september-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/surjit-kaur-vs-shri-sohan-singh-and-others-on-17-september-1998","title":{"rendered":"Surjit Kaur vs Shri Sohan Singh And Others on 17 September, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Surjit Kaur vs Shri Sohan Singh And Others on 17 September, 1998<\/div>\n
Equivalent citations: 1998 VIAD Delhi 772, 4 (1998) CLT 633, 76 (1998) DLT 351, 1998 (47) DRJ 319<\/div>\n
Author: C Nayar<\/div>\n
Bench: C Nayar<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
C.M. Nayar, J.<\/p>\n
1.     This appeal has been filed to impugn the judgment dated September  29, 1994  passed  by Additional District Judge, Delhi. The learned  Judge  dismissed the petition for grant of probate of the Will of late Smt.  Narinjan Kaur who died on October 28, 1979. It was alleged that deceased  Smt.Narinjan  Kaur widow of late Shri Ishwar Singh was a resident of New  Delhi  and during  her life time she had executed her Will dated October 9,  1979  bequeathing her property in favour of the appellant who is one of the  daughters.  Besides the appellant, the deceased also left behind two sons  Sohan Singh and Mohan Singh, one more daughter Surinder Kaur and six children  of pre-deceased daughter who was cited as near relations. Notice of the  petition was issued to the relations. Both the sons and daughter contested  the petition  alleging  that the Will was not genuine. They asserted  that  the deceased  had executed another Will dated September 16, 1979 in  favour  of Mohan Singh and the deceased during her life time had issued public  notice dated October 13, 1979 which was published in Commercial Law Gazette debarring  petitioner  from inheritance which will also show that  the  Will  as propounded by the appellant was bogus. On the pleadings of the parties  the following issues were framed:\n<\/p>\n
     1.  Whether  the  deceased executed the Will  in  question  while possessed of sound disposing mind?\n<\/p>\n
     2. Relief.\n<\/p>\n
2.   The parties examined their respective witnesses and the learned  Additional District Judge after appreciating the evidence on record as well  as the law as enunciated by the Supreme Court recorded the findings that  “the Will  was surrounded by suspicious circumstances and clearing these  suspicious circumstances to the satisfaction of the Court is within the fold  of initial onus on the propounder and until that has been done, probate cannot be  granted to the petitioner. Petitioner has failed to clear  and  explain suspicious circumstances.” The Will, as a consequence, was held not  proved and issue No.1 was decided accordingly.\n<\/p>\n
3.   The facts of the case are not in dispute. The deceased had left behind two sons, two daughters besides children of pre-deceased daughter. However, all  her  other children have been excluded  from  inheritance.  Therefore, there  is strong suspicion to hold that the Will is alleged to be a  forged and  fabricated document. Reliance has been placed on the judgment  of  the Supreme Court reported as Smt.Indu Bala Bose and others Vs. Manindra  Chandra  Bose and another . Paragraph 7 of the  judgment which has been cited by the learned Additional District Judge  clearly reiterates the proposition as under:\n<\/p>\n
     “…..The  onus of proving the Will is on the propounder  and  in the absence of suspicious circumstances surrounding the execution of  the Will proof of testamentary capacity and the signature  of the  testator as required by law is sufficient to  discharge  the onus.”  Where, however, there are suspicious  circumstances,  the onus is on the propounder to explain them to the satisfaction  of the  Court  before the court accepts the Will  as  genuine.  Even where circumstances give rise to doubts, it is for the propounder to  satisfy the conscience of the Court. The  suspicious  circumstances  may  be as to the genuineness of the signatures  of  the testator,  the condition of the testator’s mind, the  disposition made  in  the Will being unnatural, improbable or unfair  in  the light of relevant circumstances, or there might be other  indications in the Will to show that the testator’s mind was not  free. In such a case the court would naturally expect that all  legitimate suspicious should be completely removed before the  document is  accepted as the last will of the testator. If the  propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to  be  taken  into account, and the propounder  is  required  to remove  the  doubts by clear and satisfactory  evidence.  If  the propounder succeeds in removing the suspicious circumstances  the court  would grant probate, even if the will might  be  unnatural and might cut off wholly or in part near relations.”\n<\/p>\n
4.   Similar reference is made to the judgment as reported in Kalyan  Singh zs.  Smt.Chhoti and others  from where  paragraph
\n20 has been cited which reads as follows:\n<\/p>\n
     “20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant  of the will cannot be called to deny the execution  or to  explain  the circumstances in which it was executed.  It  is, therefore, essential that trustworthy and unimpeachable  evidence should be produced before the court to establish genuineness  and authenticity  of the will. It must be stated that the  factum  of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order  to judge  the credibility of witnesses and disengage the truth  from  falsehood  the court is not confined only to their testimony  and demeanour.  It  would be open to the court  to  consider  circumstances  brought  out in the evidence or which  appear  from  the nature  and  contents of the documents itself. It would  be  also open to the court to look into surrounding circumstances as  well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.”\n<\/p>\n
5.   The  nature  of proof is explained in the judgment  reported  as  Smt. Jaswant  Kaur  Vs.  Smt.Amrit Kaur and others .\n<\/p>\n
Paragraph 10 of the same may be reproduced as follows:\n<\/p>\n
     “10. There is a long line of decisions bearing on the nature  and standard  of evidence required to prove a will.  Those  decisions have  been reviewed in an elaborate judgment of this Court in  R. Venkatachala  Iyengar Vs. B. N. Thimmajamma, . The Court, speaking through Gajendragadkar J., laid down in that case the following propositions :-\n<\/p><\/blockquote>\n
     1.   Stated  generally,  a Will has to be proved like  any  other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in  the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.\n<\/p><\/blockquote>\n
     2.   Since Section 63 of the Succession Act requires a will to be attested,  it cannot be used as evidence until, as  required by Section 68 of the Evidence Act, one attesting witness  at least has been called for the purpose of proving its  execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.\n<\/p><\/blockquote>\n
     3.   Unlike  other documents, the will speaks from the  death  of the  testator and therefore the maker of the will  is  never available for disposing as to the circumstances in which the will came to be executed. This aspect introduces an  element of  solemnity  in the decision of the question  whether  the document propounded is proved to be the last will and testament  of the testator. Normally, the onus which lies on  the propounder  can  be taken to be discharged on proof  of  the essential facts which go into the making of the will.\n<\/p><\/blockquote>\n
     4.   Cases  in which the execution of the will is  surrounded  by suspicious  circumstances  stand on a different  footing.  A shaky signature, a feeble mind, an unfair and unjust  disposition of property, the propounder himself taking a  leading part  in  the making of the will under which he  receives  a substantial  benefit  and  such  other  circumstances  raise suspicion  about the execution of the will.  That  suspicion cannot  be removed by the mere assertion of  the  propounder that  the will bears the signature of the testator  or  that  the testator was in a sound and disposing state of mind  and  memory  at  the time when the will was made, or  that  those like the wife and children of the testator who would normally  receive their due share in his estate were  disinherited because  the  testator might have had his  own  reasons  for excluding  them.  The presence of  suspicious  circumstances makes the initial onus heavier and therefore, in cases where the  circumstances attendant upon the execution of the  will excite  the  suspicion  of the Court,  the  propounder  must remove all legitimate suspicions before the document can  be accepted as the last will of the testator.\n<\/p><\/blockquote>\n
     5.   It  is in connection with wills, the execution of  which  is surrounded  by  suspicious circumstances that  the  test  of satisfaction  of the judicial conscience has  been  evolved. That test emphasises that in determining the question at  to whether an instrument produced before the court is the  last will  of the testator, the court is called upon to decide  a solemn  question and by reason of  suspicious  circumstances the  court has to be satisfied fully that the will has  been validly executed by the testator.\n<\/p><\/blockquote>\n
     6.   If a caveator alleges fraud, undue influence, coercion  etc. in  regard to the execution of the will, such pleas have  to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of  this own free will. And then it is a part of the initial onus  of the  propounder to remove all reasonable doubts in the  matter.\n<\/p><\/blockquote>\n
6.   In the present case, the following facts may be of some relevance:\n<\/p>\n
     (i) the deceased was ailing and expired on October 28, 1979.  The Will was allegedly executed on October 9, 1979.The deceased along with appellant appellant visited Tis Hazari Courts where the will was read over to her by Mr.M.L.Mehra,Advocate. The visit was also stated  to be made prior to the execution of the Will on  October 6,  1979. Paragraph 16 of the judgment of the learned  Additional District Judge gives the sequence of visit as follows:\n<\/p><\/blockquote>\n
     “16. Then according to PW-2 , she along with her mother had  gone earlier  on 6.10.1979 when her mother had given  instructions  to Shri M.L. Mehra Advocate to draft Will and Mr. Mehra Advocate had got  the  Will typed from typist after giving dictation  to  him. Obviously  it was typed in her presence. The Will is on a  single page  and  it would have been drafted and typed within 15  to  30 minutes  on  the same day. There seems to be no reason  why  this Will  would not have been collected from the typist on  the  same very  day  i.e. on 6.10.1979 when it was  admittedly  ready.  The testatrix  as  per  death certificate Ex.P-2 was  aged  about  75 years,  and according to RW-5 also she was about 80 years old  at the  time of her death. She had died on 28.10.1979, i.e.  on  the 19th  day thereafter. PW-2 has also deposed that she had died  in Lady Harding Hospital where she was admitted 15 days earlier  and had  some  abdominal trouble. Objector Mohan Singh  as  RW-4  has deposed  that  he came to Delhi on 28.8.1979 as  his  mother  had called him as she was ill. Other daughter Smt. Surinder Suman  as RW-5, in her cross-examination has stated that her mother was ill and  died  in Lady Harding Hospital. in that state  of  her  ill-health, the testatrix would not have been in a fit state of  body and mind to have gone to Tis Hazari Court on 6.10.1979 and  again on  9.10.1979.  This  Will, if it was so  drafted  and  typed  on 6.10.1979, could have been taken by her and also could have  been executed at her house, instead of with her ill-health she  having taken  the trouble and botheration of going to Tis  Hazari  again especially  when two of the attesting witnesses are stated to  be residents  of  Ramesh Nagar itself where she was living  and  the other  witness  was to be summoned from  Talkatora  Garden.  This creates  suspicion if the testatrix would have actually  gone  to Shri M.L. Mehra Advocate for getting her Will drafted.”\n<\/p><\/blockquote>\n
     (ii)  The  deceased executed the alleged Will in  favour  of  the appellant  and  excluded  two sons, one other  daughter  and  six children of pre-deceased daughter. A strong suspicion is cast  in respect of the Will on this ground as well. The exclusion by  the testatrix  her  other children from inheritance seems to  be  one ground  to cast suspicion on the execution of the  document.  The relevant  paragraph  17 of the judgment in this regard  reads  as below:\n<\/p><\/blockquote>\n
     “17.  Also  by  this Will the testatrix has  excluded  her  other children from inheritance. It wan an inofficious Will. If it  was actually drafted by an elderly Advocate before hand, there  seems to  be no sufficient ground why he would not have  suggested  her that the Will should also be got registered in order to lend more credence  to its genuineness when she had visited him twice,  and the  office  of Sub-Registrar at Kashmere Gate was not  far  away from  Tis Hazari. It was all the more necessary  considering  her old age and her ill-health. It was also necessary in the  circumstances because petitioner had taken an active part in the preparation  of this Will and she is the exclusive  beneficiary  under the  Will. This again is a very strong  suspicious  circumstances and it was all the more necessary and proper that the Will should have been got registered.”\n<\/p><\/blockquote>\n
     (iii)  The evidence has been brought on record to show  that  the testatrix  had good relations with all her legal heirs there  was no occasion to deprive them from the inheritance. The  propounder of the will appellant herein and her husband took active interest in  the matter. The witness Shri Pritam Dhariwal was examined  as PW1. He deposed that the will was executed by the deceased in his presence  as  well as in the presence of Shri M.L.Mehra  and  one Mr.Puri who also signed the will in presence of the deceased. The petitioner  examined  herself  as PW2 and deposed  that  she  was looking after the deceased and she was also living with her  till her  death. It is not denied that PW1 is a friend of the  husband of the propounder Rajinder Singh. No other witness was  examined. In this background it was necessary for the appellant to  examine other witnesses who had signed the alleged Will. This will  obviously cast doubt and suspicion as to whether the will was in fact executed on the date as stated i.e. October 9, 1979.\n<\/p><\/blockquote>\n
     (iv)  It has also been held that the will was not signed  by  the testatrix  when others had signed it. The learned judge  observed that the signatures of the executant do not show natural  writing speed  and  are not of skilled hands and such signatures  can  be easily  forged. The deceased was an old ailing woman and  it  was unnatural  for her to execute the Will in the manner it has  been sought to be done. Therefore, the finding that the deceased would not have been in a fit state of body and mind to have gone to Tis Hazari Court on October 6, 1979 and again on October 9, 1979  for getting  the Will prepared and for its execution. This will  cast serious doubts when the deceased died shortly after the execution of the alleged Will and was ailing 75 years old lady.Further  the suspicious circumstances will be apparent from the conduct of the appellant and her husband who were the major beneficiaries.\n<\/p><\/blockquote>\n
7.   On  the other hand the defendants have produced independent and  reliable  evidence to substantiate their claims that the Will executed  by  the deceased Testatrix was not genuine. RW1 Shri R.S.Rana stated in his  examination-in-chief to the effect that a public notice was published on October 25, 1979 which was sent on October 13, 1979 for publication to the  Commercial  Gazette by Smt.Niranjan Kaur widow of late Shri Ishar Singh  resident of 3\/146, Ramesh Nagar, New Delhi. Ext.R.1 in this regard reads as follows:\n<\/p>\n
                              “PUBLIC NOTICE  <\/p>\n
                                CORRIGENDUM<\/p>\n
     The  public  notice  published in our  Vol.2  issue  No.20  dated 25.10.1979 should be read as under.\n<\/p><\/blockquote>\n
     THIS IS TO INFORM all concerned and the members of the Public  at large  that  out of all my heirs namely my two sons,  Shri  Mohan Singh and Shri Sohan Singh and my three daughters, namely,  Shrimati Surjeet Kaur, Smt.Surinder Kaur and Smt.Pritam Kaur, all  of whom are married, I have voluntarily and of my free will debarred all  my heirs except Shri Mohan Singh to inherit my movables  and immovable  property bearing No.3\/146, Ramesh Nagar,New  Delhi-15, in  which I have 5\/6th share, after my death. I have also made  a Will in favour of my son, Shri Mohan Singh. This Public Notice is being  given as my son-in-law, Shri Rajinder Singh, has got  certain blank papers signed by me in his possession on the basis  of which  he wants to make application in the Municipal  Corporation and other offices for the purpose of getting the property  transferred in his name.I hereby declare that except Shri Mohan Singh, no  other person has any authority to make any representation  on my behalf and in case anybody represents on the basis of the said blank  papers in possession of Shri Rajinder Singh or  any  other person or in case any representation is made in any other  manner contrary to this declaration, then the same shall be void and not binding  on  me, my estate or my son Shri Mohan Singh who  is  to solely  inherit  my aforesaid estate including 5\/6 share  in  the property  bearing No.3\/146, Ramesh Nagar, New Delhi-15 as per  my Will.\n<\/p><\/blockquote>\n
 Delhi                              (Smt. Niranjan Kaur)\n13.10.1979                         Wd\/o Late Shri Ishar                                                                          Singh\n                              R\/o 3\/146, Ramesh                                                                            Nagar,\n                              New Delhi.\"\n\n \n\n8.   The  reading of the above will indicate that the husband of  the  propounder  had  got certain blank papers signed by the Testatrix.  This  will cast serious doubts on the veracity of the Will. RW4 Mohan Singh who is the son of the deceased stated the following facts in his examination-in-chief: \n \n \n\n<\/pre>\n
     “……. Hand of my mother used to tremble while writing. I  came to Delhi on 28.8.1979, as my mother had called me as she was  ill and wanted me to take care of my house. My mother told me when  I came  to Delhi that Surjit Kaur who was living with her was  harassing her. I was never told by her that she had made any will in favour  of  Surjit Kaur. My mother got published  notice  in  the newspaper  that whatever she wanted to give had given to  me.  My mother  was  taken  away by my brother-in-law  and  Surjit  Kaur. (objected  to). I performed the kirya ceremony of my  mother  and the  Path was kept in Gurudwara and bhog ceremony  was  performed outside  my house in a street. Surjit Kaur did not allow to  perform bhog ceremony in the house. Surjit Kaur and her husband  had attended the funeral and no other ceremony.”\n<\/p><\/blockquote>\n
9.   Similarly, RW5 Smt.Surinder Suman, sister of the appellant Surjit Kaur stated that her mother had made a Will in favour of Mohan Singh and had not made any other Will. The said Mohan Singh performed the cremation  ceremony of the Testatrix and Akhand Path took place in Gurudwara and Pagri ceremony took place in the street outside the house as Surjit Kaur did not allow  to perform  the  ceremony in the house. It is further stated that  her  mother used  to  ask the appellant Smt.Surjit Kaur to leave her  house  which  she refused to do and gave beating to the deceased.\n<\/p>\n
10.  The evidence as produced by the respondents will clearly cast  serious doubt  on  the execution of the Will by the deceased Testatrix a  few  days before  her death i.e. October 9,1997 when she passed away in  hospital  on October  28,  1979.  The appellant and her husband on  the  admitted  facts played  an active role in the execution of the alleged Will. The only  witness  produced  was  the friend of the husband of the  appellant.  In  this background  suspicion is cast on the voluntary character of  the  document. The  learned Additional District Judge has carefully analysed the  evidence on record and arrived at a conclusion that it was not proved that the  Will was  the genuine Will of the deceased and dismissed the  probate  petition. The  entire  evidence has been assessed and no fault can be  found  in  the judgment as rendered in the case.\n<\/p>\n
11.  For  the above reasons, there is no force in this appeal and the  same is, accordingly, dismissed. There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Surjit Kaur vs Shri Sohan Singh And Others on 17 September, 1998 Equivalent citations: 1998 VIAD Delhi 772, 4 (1998) CLT 633, 76 (1998) DLT 351, 1998 (47) DRJ 319 Author: C Nayar Bench: C Nayar ORDER C.M. Nayar, J. 1. This appeal has been filed to impugn the judgment dated September […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-115158","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSurjit Kaur vs Shri Sohan Singh And Others on 17 September, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/surjit-kaur-vs-shri-sohan-singh-and-others-on-17-september-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Surjit Kaur vs Shri Sohan Singh And Others on 17 September, 1998 - 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