When “Will” can be believed:-
13, Due execution of a Will is proved when the following are established:-
(i) Testamentary capacity of a testator; (ii) Testamentary character of the instrument; (iii) Knowledge and approval of the instrument by the testator; (iv) Absence of undue influence; (v) Due execution and attestation.
14. Learned counsel for the parties did not question the testamentary capacity of the testator on 29.10.1997 probably for the reason that the objectors themselves relied upon a written document signed by the deceased on 30.10.1997. Even otherwise, I find that parties were not at variance with the fact that on 29.10.1997, deceased who was a resident of Delhi had travelled to Meerut in connection with a court case. I may note that the Will relied upon is stated to have been scribed in the District Court Complex at Meerut on 29.10.1997.
15. If the Will is established otherwise, testamentary character of the instrument flows from the document itself.
16. It was not the opposition to the Will that it was a result of undue influence. What was questioned was the very fact of due execution and due attestation of the Will.
17. Learned counsel for the petitioners in reference to the testimony of PW-1, PW-2 and PW-3 urged that the Will stood established. The PW-1, Herald A. Singh and PW-2 Dharam Singh are the two purported attesting witnesses to the Will in question. PW-3 Ilyas Ahmed is the scribe who states in evidence that he typed the Will as dictated by the deceased.
18. Counsel for the objectors opposed the Will and urged that it was a fabricated evidence, evidenced by the testimony of R2W1 (= Respondent-2’s Witness No-1) Ms. Beena Lal and R2W2 (= Respondent-2’s Witness No-2) Sh.S.B. Singh as also the testimony of R2W3 (= Respondent-2’s Witness No-3) Sh.Harpal Singh Chauhan.
Specimen evidence given by the Attesting Witnesses.
It was not relied in this case, by the Court:
19. In his testimony, PW-1 has stated that he was a resident of Meerut and knew the deceased. On 29.10.1997, he received a call at about 12 noon from the deceased requesting him to come to the court complex and meet him at the table of Ilyas Ahmed (PW-3) who had a table in the court complex, being a typist. He reached the given point at about 12.15 noon. Dharam Singh, PW-2 was present when he reached the table of PW-3. Deceased had got a Will typed in Hindi from PW-3. Deceased put his signatures on all pages of the Will. Thereafter Mr. Dharam Singh, PW-2 put his signatures as attesting witness No. 1 and he signed the Will thereafter as attesting witness No. 2.
(NOTE:- 1988 Legal Eagle (Delhi High Court) 124, Ramesh Dutt Salwan Versus State of Delhi and Others; is separately given in this Book, from which it can be learnt that, the “Scribe/ Typist” have no power to take dictation from the Testator. Only a person with the licence of Documents writer can prepare the Will. Otherwise either an Advocate should sign as Drafting or the Testator should write with his own hands – Author).
20. PW-2 Dharam Singh deposed that on 29.10.1997 deceased came to his house at Meerut at 9 A.M. and had breakfast with him. Both went to the court complex at about 10 A.M. After he attended the case against Mr. Chauhan (R2W3) (= Respondent-2’s Witness No-3), both went to the typist Ilyas Ahmed (PW-3). In the meanwhile Herald A.Singh (PW-1) also reached. Thereafter, PW-3 typed the Will as per "direct dictation" of the testator. After the Will was typed, deceased put his signatures on each page in his presence. Thereafter, he signed as a witness and after him PW-1 also signed as an attestation to the Will.
21. Ilyas Ahmed (PW-3) deposed that he typed the Will as per the dictation of the testator. He deposed that the testator used to get typing work done from him (NOTE: In case of Document Writers, with Licence under relevant Rules, their evidence should also state the Licence number – Author).
22. In his cross-examination, PW-1 failed to give satisfactory response to various questions put to him about the deceased and various facets of the life of the deceased. In his examination-in-chief, PW-1 claimed to know the deceased since the time of his father. PW-1 stated that property of the father of the deceased and property of his family at Meerut were in the same area. In his cross-examination, he stated that he met the deceased at 11 A.M. at the court complex at the table of PW-3, a time materially different from what was stated by this witness in the examination-in-chief, being 1 P.M. Whereas, in his examination-in-chief witness deposed that when he reached the table of the typist after he had received a telephone call from the deceased, Will was already typed out, in cross-examination, he deposed that the Will was typed in his presence. In cross-examination, PW-1 stated that he gave his name and address to the typist.
23. It may be noted that neither name nor address of PW-1 has been typed by the typist on the Will.
24. In cross-examination, PW-2, stated that he was told by the deceased to meet him at the court complex around 11/11.30 A.M., a fact at material variance with his examination-in-chief wherein he stated that the deceased came to his house at 9.00 A.M, the two had breakfast together and both left in a manual rickshaw for the court complex at 10 A.M. In cross-examination, PW-2 stated that when he reached the court complex, the Will was being typed by PW-3 and he gave his name and address to the typist. On a specific question whether the typist typed his name and address on the Will, PW-2 responded that the deceased had brought a handwriting note and the typist typed from the same and thereafter he put his signatures on the asking of the deceased.
25. Will in question does not contain the typed name and address of PW-2.
(NOTE: How to analyse a Document/ Exihibit, to find whether it is a Forged document – Author).
26. A perusal of the Will which has been exhibited as PW-1/1 would show that it is in 4 pages with signatures of the deceased at the bottom of each page. The signatures on the last page of the Will are also at the bottom.
27. The earlier 3 pages show that each page has about 25-26 lines but the last page has only 12 lines and yet the said page has been laid out to so fill the page space that name of the executant of the document comes at the bottom of the page. A perusal of the last page of the document would show that to utilize 40% of the page space, the scribe has on the left hand side of the page typed "witness-1" and after substantial space has, typed "witness-2". On the corresponding right side of the page, there is a complete blank. Leaving further space on the opposite side and much below the horizontal line where the word "witness-2" has been typed on the left side of the page, the scribe has typed "signatures of the executant". Leaving a space of nearly one and a half inch, scribe has typed the name of the executant.
28. A perusal of the manner in which the Will has been scribed does not rule out the possibility of 4 pre-signed pages being utilized to create a document.
29. A perusal of the Will would reveal not a single correction or over-writing. PW-1, PW-2 and PW-3 stated in their examination-in-chief that the Will was typed on a direct dictation by the deceased. It is highly improbable that on a direct dictation taken by the typist on a manual typewriter, not a single mistake requiring correction, cutting or over-writing would be found. Further, the Will uses typical Persian words; words which a scribe would know as having learnt during course of his avocation. The words are not simple Urdu words scribed in Hindi script but are Persian words.
30. Neither party disputed that the deceased was well-versed in English. The deceased had retired from government service and was engaged in missionary work. Signatures of the deceased are firm and are in English. It is highly strange that when facility is available for typing in English why would the deceased get a Will scribed from a scribe in a Hindi script and that too by use of Persian words.
31. Witnesses of the petitioners have contradicted themselves on the point of time when the document was scribed. Witnesses of the petitioner have contradicted each other in the manner in which the document was scribed. At one stage, witnesses state that the document was a result of direct typing after it was dictated by the deceased to PW-3 but at another stage, in cross-examination, PW-2 stated that the deceased had brought a hand-written note and the typist typed from the same.
32. PW-1 and PW-2 have categorically stated that they were present when the Will was typed and they had given their names and address to PW-3. Names and addresses of PW-1 and PW-2 are not typed on the Will in question.
33. Though issue of title cannot be gone into in a probate proceedings but since it is of some relevance, I must note the fact that the objector has led evidence to establish that tenancy of the property at Bhargava Lane was in her name, she was paying the rent and that she had acquired the property at Uttam Nagar from her own funds as she had worked as a teacher of Victoria Senior Secondary School, Rajpur Road and had her own earning.
(NOTE:- If the children from the first wife will prefer to file a Civil Suit to Recover the Possession of that house saying Binami, the observation done by the Hon’ble Judge at this Paragraph will not officially help the Second Wife in the said case – Author).
34. It appears that the Will in question has been brought into existence to create evidence emanating from the deceased which would impinge upon the title of the objector to the two properties.
35. I need not discuss the evidence of the objector for the reason, that the objector has led evidence to show title to the property at Uttam Nagar and tenancy rights in her favour qua the property at Bhargava Lane. Objector has also led evidence to establish an alleged typed acknowledgment dated 30.10.1997 executed by the deceased proved as Exihibit R2W1/1 (= Respondent-2’s Witness No-1 had proved this document, thus it is marked Exihibit). Said document purports to be a family settlement but has been signed only by the testator. A reading of the said document would show that it has been brought into existence to show that the deceased acknowledged that the objector is the owner of the house at Uttam Nagar and tenancy rights in the property at Bhargava Lane are those of the objector.
36. Since in the present proceedings, this court is concerned only with limited issue whether the Will propounded by the petitioner was the last valid and legal testament of the deceased, I refrain from expressing any opinion on the validity or proof of E xhibit R2W1/1 for the reason that it is not necessary for this court to decide the said issue.
Suspicion about Will, when can be raised:-
37. Suspicion may be inherent in a transaction. Suspicion may arise from a conflict of testimony of the witnesses. It is true that mere suspicion cannot destroy a Will, but where a Will is prepared and executed under circumstances which create a suspicion in the mind of the court, it lies on the propounder to not merely prove the execution of the Will, in the sense that it was signed by the testator but also to adduce evidence which would remove suspicion and satisfy the court about due execution of the Will.
38. I have noted above in paras 19 to 25, the variation in the testimony of the witnesses to the Will and the scribe. I have noted the conflicting versions pertaining to the typing of the Will by PW-3. I have noted the variation on the ‘issue of the time’ when the Will came into existence and was executed. I have noted the place of signatures on last page of the Will as being indicative at pre-signed pages being utilized. Cumulatively, the facts and circumstances noted in said paragraphs 19 to 30 lean against the Will in question being established as the last and valid legal testament of the deceased.
39. Issue No. 1 and issue No. 4 are accordingly decided against the petitioners and in favour of the objectors. It is held that the petitioners have failed to prove that Exhibit PW-1/1 was the last valid and legal testament of the deceased, Shri S.M. Lall. The petition is accordingly dismissed.
40. Objectors shall be entitled to costs against the petitioners.
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IN THE HIGH COURT OF DELHI
Equivalent Citations: 2006 (131) DLT 53.
Snehlata Aggarwal. Versus State of Delhi.
Probate Case No. 47 of 1999. Date of Decision : 25-May-2006
HEADNOTE :
Indian Succession Act, 1925 -- Sections 276, 278 -- Grant of probate/letters of administration in respect of Will -- Execution of Will -- Proof of -- All legal heirs filed their no objection to the grant of probate in favour of petitioner -- Attesting witness examined -- Petitioner also entered in the witness box -- According to her testimony deceased -- Testator was her father and he executed Will in her presence -- Petitioner proved her father’s death on 27.5.1999 by death certificate -- Probate granted to petitioner in respect of properties mentioned in Will subject to conditions.
JUDGMENT/ORDER:
Hon’ble Ms. Justice Rekha Sharma, Judge:-
1. This is a petition by Smt. Snehlata Aggarwal under Sections 276 and 278 of the Indian Succession Act, 1925 for grant of Probate/ Letters of Administration in respect of the Will of her late father Shri Prabhu Narain.
2. It is stated in the petition that Shri Prabhu Narain was a permanent resident of A88, Saraswati Vihar, New Delhi. He died on 27.5.99 leaving behind three sons, namely, Shri Brajendra Kumar Aggarwal, Shri Rajendra Kumar Aggarwal and Shri Krishan Kumar Aggarwal and two daughters, namely, Smt. Pooja Goyal and the petitioner. It is further stated that late Shri Prabhu Narain left behind one house built on a plot of about 990 sq. ft. and one other house built on a plot of 1155 sq. ft. both situated in Mohalla Saddupur Mohana, Kasba Chunar, Distt. Mirzapur (UP) besides other properties. Both the aforementioned houses were self-acquired properties of late Shri Prabhu Narain and was purchased by him from Shri Kalyan Das Singhal and from Shri Lalit Prasad vide Sale Deed stated 21.9.91.
3. According to the petitioner on 27.4.98 Shri Prabhu Narain while being in perfect state of health and sound disposing mind executed a Will at Delhi in respect of the above two properties in the presence of two witnesses, namely, Shri R.K. Aggarwal and Shri O.P. Sethi. By virtue of the Will he bequeathed the said houses to the petitioner. Being a beneficiary in the Will, the petitioner has filed the present petition seeking Probate/Letters of Administration with respect to the same.
4. Notice of the petition was issued to all the legal heirs of Prabhu Narain except of course the petitioner. All of them in response to the Notice filed their no objections to the grant of probate of the Will dated 27.4.1998 in favour of the petitioner. Subsequently, on 21.9.1995 (sic.) all of them except Pooja Goyal made a joint statement to the same effect before the Joint Registrar. Smt. Pooja Goyal made a similar statement on 10.1.2006.
4.1. The notice to the public at large was also given with regard to the petition by ordering publication in newspaper "Indian Express" Delhi edition and "Umar Ujala" but it evolved no response.
5. The petitioner, in order to prove the Will in question examined the attesting witness Shri R.K. Aggarwal as PW 1. He deposed that Shri Prabhu Narain died on 27.5.1999 and before his death he executed a Will on 27.4.1998. The Will was already typed and it was read over to him. He further deposed that Shri Prabhu Narain signed the Will in his presence and thereafter he also signed the Will. According to him, the Will was also signed in his presence by Shri O.P. Seth, Advocate. He proved the Will as Exihibit PW 1/1 and also stated that at the time of execution of Will Shri Prabhu Narain was in perfect state of health and mind.
6. The petitioner besides examining the attesting witness herself also entered the witness box as PW 2. As per her testimony, late Shri Prabhu Narain was her father and he executed a Will in her presence. The Will was signed by Shri R.K. Aggarwal. She further deposed that her father died on 27.5.1999. She proved the death certificate of her father as Ex. PW 2/1. She also deposed that the other relation of Shri Prabhu Narain have no objection to the grant of probate in her favour.
(NOTE:- The procedure written in this Paragraph is not safe. According to Law, in own case’s proof, it is the party himself/ herself who should enter the witness box = Plaintiff should be PW-1. Respondent-1 should be R1W1. Kindly read Code of Civil Procedure, 1908, Order 18, Rule 3A: “Party to appear before other witnesses – Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage”. It means, the Plaintiff lady ought to have recorded her own evidence in the Court as PW-1, otherwise a Miscelleneous/ Interlocutory Application under Order 18, Rule 3A; should have been moved and a specified Order of the Court might have been procured, to let her examine herself as PW-2, or her evidence as PW-2 cannot be read = relied by the Court to Pronounce judgment – Author).
7. It will be seen from what has been noticed above that the Will made by Shri Prabhu Narain dated 27.4.1998 whereby he bequeathed the above referred two houses situated in Mohalla Saddupur Mohana, Kasba Chunar, Distt. Mirzapur (UP) to the petitioner has been duly proved through the testimony of PW-1 and PW-2. The other relations of deceased have no objection to the grant of Probate in favour of the petitioner.
8. In view of the above, 1 accept the Will Exihibit PW 1/1 executed by late Shri Prabhu Narain and grant Probate of the same to the petitioner in respect of the properties mentioned in the Will subject to her furnishing valuation certificate from he Collector, payment of Court fee thereon, administration bond and surety bond, File be consigned to Record Room. (Note:- When the case is pending, it will be in the Ahlmad/ Branch of the Court. When the case is decided, it will be send to “Record Room”. At the High Court of Delhi, there are two types of Record Room: RKD = Record Rooom of Decided cases and RKP = Record Room of Pending Cases, which are adjourned without next date of hearing – Author).
Ordered accordingly.
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Administrative-cum-surety bond Cases:-
IN THE HIGH COURT OF DELHI
1996 (61) DLT 502 : 1996 (61) DLT 267 : 1996 LE(Del) 22
Shakuntala Taxali. Versus State (Delhi Administration).
Interlocutory Application No… of year…; in Probate Case No….
Date of Decision : 01-Jan-1996
JUDGMENT/ORDER:
Hon’ble Mr. Justice Manmohan Sarin:-
(1) VIDE a judgment dated 6th April, 1995 the probate petition filed by the petitioner under Sections 276 and 278 of the Indian Succession Act for grant of probate of the Will and letter of administration to the estate of Smt. Vidyawati Taxali was allowed. The petitioner executed the administration-cum- surety bond. Vide orders dated 4th July, 1995 the petitioner was required to furnish two sureties as the value of the estate was above Rs. 1,000.00.
(2) The petitioner by this application is praying that the petitioner be directed to furnish only one administration-cum-surety bond. In other words the administration-cum-surety bond furnished by Smt. Soma Wati Kapoor as surety be accepted without the additional requirement of furnishing one more surety bond.
(3) Learned Counsel has pointed out that this was not a contested matter and all the legal heirs of the deceased had been served and filed affidavits affirming the execution of the Will and conveying no objection to the grant of probate of the said Will and letter of administration in favour of the petitioner, who was the executor under the Will. Learned Counsel has also referred to the case Shambhu P. Jaisinghani v.Kanaya Lall Paisighani reported at 60 (1995) DLT page 1, where the very requirement to give the administrative bond was waived since the Will was in favour of the natural heirs, as is the case in the present instance.
4. Having regard to the averments made in the application and the submissions made, the requirement for execution of the second administrdtive-cum-surety bond is dispensed with. IA (= Interlocutory Application) stands disposed of.
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IN THE HIGH COURT OF DELHI
1996 LE(Del) 251 : 1996 (2) AD(Del) 573 : 1996 (37) DRJ 178.
Shakuntala Taxali Versus State (Delhi Administration).
Interlocutory Application No… of year…; in Probate Case No….
Date of Decision : 01-Apr-1996
JUDGMENT/ORDER:
Hon’ble Mr. Justice Manmohan Sarin, Judge:-
(1) This is an application moved by the petitioner under Section 94 read with Section 151 Civil Procedure Code seeking exemption from furnishing the administration cum surety bond as well as for discharge and/or exonerating the surety from future liability.
(2) The facts leading to the filing of the present application may be briefly noted:-
3. The petitioner is the daughter-in-law of the pre deceased son of late Smt. Shakuntala Taxali. The petitioner had filed the probate petition No-8/1994 under Section 276 and 278 of the Indian Succession Act, praying inter alia for the grant of the probate of the Will dated 1-5-1980, executed by the deceased Smt. Shakuntala Taxali and for the grant of letter of administration of the estate detailed in annexure 2 to the petition. The two surviving sons of late Smt. Shakuntala Taxali, Sh. Shyam Kumar and Sh.NareshKumar Taxali as well as daughter of the deceased Smt. Sudesh Uppal were impleaded as respondents apart from State. The citation was published in the newspaper. The Will was duly proved and the respondents/near relations filed their No Objection and affidavits in support of the Will. The petitioner is the named executor in the Will.
(4) Vide order/judgment dated 6-4-1995, Hon’ble Mr. Justice Devender Gupta, Judge allowed the petition as prayed and ordered the grant of letters of administration with respect of the estate of the deceased as listed in annexure 2 to the petition, with Will attached thereto in accordance with Law. Pursuant thereto the petitioner filed one administration cum surety bond. However, the Registrar in accordance with Original Side practice and direction No.4, required the petitioner to furnish two sureties as the value of the estate was above RS.1000.00 . The petitioner thereafter kept on seeking time to furnish the second surety and the matter was adjourned from time to time to enable the petitioner to do the needful.
(5) THE petitioner thereupon by December 1995 furnished the administration cum surety bonds dated 19-5-1995 and 3-11-1995 and the statement of the petitioner as well as that of Smt. Sudesh Uppal, who had signed as one of the sureties were recorded. Thereafter, the petitioner moved I.A. 12316/95, seeking exemption from furnishing the second administration/cum surety bond on the ground that the second surety Mr. C.M. Chopra is not available in Delhi and had to travel abroad. Considering that the Will was in favour of the natural heirs as well as it was not a contested matter, the I.A. was disposed of vide orders dated 5-1-1996 and 12-2-1996 dispensing away with the requirement of filing second administration/cum surety bond