1988 Legal Eagle (Delhi High Court) 124 : 1988 RLR 387.
Ramesh Dutt Salwan Versus State of Delhi and Others.
Probate Appeal. Date of Decision : 26-May-1988
Advocates Appeared:
Mukul Rohatagi : Ravi Gupta : R.S.Narula : D.S.Narula
HEADNOTE :
Delhi Documents Writers Licensing Rules, Rule 1986 -- Rules 3 r/w Rule 14 -- Documents writers -- Document Registration -- Absence of licence by the Typist – Details of Document Writer not written on the Regd Will, effect of – The Sub-Registrar and his Staff should not accept to register a document for registration, unless, the same is written by a Licenced Document Writter or the Executant or his Advocate -- Rules is applicable in cases of ‘Will’, as well.
STATUTES REFERRED:
1. Delhi Document Writers Licensing Rules,1966, Rules 3 and 14.
2. Evidence Act,1872, S.65.
3. Registration Act,1908, S.17.
4. Succession Act,1925, S. 63, 68 and 299.
JUDGMENT/ORDER:
Hon’ble Mr. Justice D.P.Wadhwa.
The Tale of Two Wills:
Paras 1 to 10. Summary of Facts.
i) Petitioner/ Applicant in the Probate Court, who is the Appellant in the High Court, want to rely on Will of his mother, dated 8-5-1974. His Brother Respondent No-2 want to rely on another Will of his mother, dated 1968. The Respondent No-1 is State Governement, because cases related to Will are against the Government, that is if a person have no successor or heir, after his death the properties Will be forfeited by the Government.
ii) Appellant and Respondent No. 2 are brothers while No. 3 and 4 are their sisters and No. 5 is a sister's husband. Appellant alleging that their mother had made a Will on 8-5-74, and relying upon the said Will, he had applied for grant of Probate u/s 299 of Succession Act.
iii) He was joined by Respdt. 5 (that is, in Pleadings language, he is “Proforma Respondent/ Defendant”), who is Sister’s husband of the Appellant, as both of them were named Executors in the said Will. Respdt. No. 5 however did not pursue. Appellant did not produce original Will alleging same to be in possession of Respdt. No. 2. The Will was presented for registration after 20 days and it was regd. on 29-5-74. Its attesting witnesses were not local (Note: it is not necessary that only Locals or Neighbours should witness and sign. The only safety condition is, persons who cannot be influenced by beneficiaries should be witnesses, if the person who made Will died after a lot of days; but if the Will is made in Death bed, there Will be only Interested persons as Witnesses – Author), and they were relations of the appellant's wife (Note: they Will be called Interested Witnesses, and normally Will not be believed – Author).
iv) One of the attesting witness was examined in court. The parties also deposed their evidence in the Open Court, on oath. (Note: it is loop hole in the law that, only one Attesting Witness need to testify in the Court. Thus if they are alive, both of them should record their evidence in Court and be ready for Cross exam. If they have no time to come to Court, the Court Will appoint Advocate Commissioner to record their evidence. It that is not done, why they cannot be examined should be proved. Otherwise the “Will” Will be disbelieved – Author).
v) The Defence by brother of the Petitioner/ Applicant/ Appellant/ Respdt. 2 is that, he had denied execution and genuineness of the Will and claimed that the mother had made a Will in 1968 and same having not been revoked deserved credence. Trial Court rejected the application and appellant appealed to High Court.]
After narrating above facts, judgment proceeds :-
Fraud while obtaining certified copy of Will:
(12) Application for grant of certified copy of the Will was made on 18-7-1980 by Ramesh Dutt and the certified copy was ready on 30-7-1980. During the course of arguments, it was submitted that the contents of the docment Ex. P-4 were got typed by Ramesh Dutt. This certified copy has been subject-matter of severe criticism by Mr. R.S. Narula, learned counsel for Shiv Dutt. For example, the names and addresses of the attesting witnesses have not been shown in the certified copy Ex. P-4 and only the endorsement "illegible"'has been given. Another certified copy, which is a photo-copy of the Will in question from the office of the Sub Registrar, New Delhi, has been brought on record, which clearly shows the names and addresses of the attesting witnesses. There appeared to be thus no reason as to why in the certified copy Ex. P-4 the names of the attesting witnesses with particulars could not have been given. Mr. Narula said there was deliberate attempt to withhold the names of the attesting witnesses as the Will in question was executed in mysterious circumstances. I may have to deal with this argument at a later stage.
Statutory law, only a few Points, about Will.
(13) REFERENCE at this stage may be made to relevant provisions of law relating to preparation, execution and registration of a Will. Every person of sound mind not being a minor may dispose of his property by Will. This is S. 59 of the Succession Act. There are four explanations to it and Explanation 4 reads:- "No person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what be is doing."
(14) A Will or part of a Will the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void (S. 61). A Will is liable to be revoked or altered by (he maker of it at any time when he is competent to dispose of his property by Will (S. 62). S. 63 of Act deals with execution of a Will. It provides that the testator, as is relevant for the present case, shall sign the Will and shall place his signatures in such a way as shall appear that it was intended thereby to give effect to the writing as a Will. Then the Will is to be attested by two or more witnesses. Each of such witnesses must have seen the testator sign the Will or should have received from the testator a personal acknowledgment of his signature on the Will and each of the witnesses shall sign the Will in the presence of the testator. It shall, however, not be necessary that more than one witness be present at the same time. No particular form of attestation is necessary. As to what is meant by "attested". reference is made to S. 3 of the Transfer of Property Act (T.P.A.), 1882. It would appear to be same as mentioned in S. 63 of the Succession Act relating to attestation of a Will by witnesses. (How will is revoked ?) Under S. 70 of the Succession Act, a Will stands revoked on marriage or another Will or codicil or by some writing declaring an intention to revoke the same and executed in the manner in which a Will is required to be executed or by burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. S. 71 gives the effect of obliteration, interlineation or alteration in the Will.
“Will” Preparation and Registration, a few Rules:
These Rules are common for other Documents also.
(15) RULES have been framed under the Registration Act, 1908 (for short 'the Registration Act') called the Delhi Document Writers Licensing Rules 1966 (DDWL) and the Delhi Registration Rules 1976. A Will can be written by the testator himself or by an advocate or a document writer. Under Rule 3(2) of the DDWL Rules 1966, no registering officer shall accept any document for registration which is not written by a licensed document writer or the executant himself. Rules 14 of these Rules gives conditions of licence, and it provides that every document writer shall sign every document written by him, affix his seal and enter therein the number which it bears in his register and also the fee charged for writing the same. The Delhi Regn. Rules, 1976 provide as to how documents are to be preserved and how various registers are to be maintained. Under these Rules, documents which are sought to be registered can be presented up to 12.30 p.m. each working day. Under Rule 31, the registering officer shall personally receive all documents for which registration is sought and have them examined in his own presence. Rules 32 to 35 prescribe the procedure on acceptance of a document for registration. On accepting a document for registration, a party is to deposit the prescribed amount of fee. Then the registering officer is to enquire whether the document was executed by the alleged executant and satisfy himself as to the identity of the person appearing before him to admit execution. Under Rule 34, the registering officer shall subject the document to a thorough scrutiny with a view to ascertaining whether it correctly represents the intention of the parties and in case the documents executed by persons who are unable to read the registering officer shall read out and, if necessary, explain to them the contents of the documents and shall ascertain if the parties clearly understood what the documents purported to contain. If the documents are not in the language understood by the parties, the registering officer shall also in like manner interpret and explain the documents to the parties. When the registering officer is satisfied on the point of identity and also about the execution, he shall record on the instrument the endorsement required by S. 58 of the Registration Act and such endorsement shall be signed with date by the registering officer, the executant and all the witnesses examined. Under Rule 39, when a document has been admitted to registration and the necessary endorsements have been recorded, it should be handed over to the duplicating clerk to copy out the endorsements on the duplicates and the registering officer should see that the documents are pasted in the books in the order of their admission without unnecessary delay. There after, the several endorsements made in the office (including the certificate of registration prescribed by S. 60 of the Regn. Act), the several signatures of the registering officer, presenter, executants and witnesses examined shall all be copied on the duplicates at proper places. Under Rule 40, the documents are to be endorsed with certificate of registration as required u/s 60 of the Regn. Act. Rule 41 read with Rule 32 prescribes as to how registered documents are to be retained.
It is not compulsory to register a Will.
(16) A Will is not a document which is compulsorily registrable under the Regn. Act. However, a Will presented for registration by the testator may be registered in the same manner as any other document (S. 41, Regn. Act). Part VI of the Regn. Act deals with presentation of documents for Regn. and Part (B) of Part XI thereof deals with the procedure on admitting to Regn. and the relevant sections are 58 to 61.
Mode of proof about Will:-
Some of these Rules are applicable to all other Documents also.
(17) THEN, the question is as to proof of the document being a Will. For that one may turn to the Evidence Act. The contents of a document may be proved either by primary or by secondary evidence. Primary evidence would mean the document itself (Ss. 61 and 62). Documents must be proved by primary evidence except in certain cases as given in the Evidence Act (S. 64). S. 63 describes as to what secondary evidence means and includes. Under S. 67 signatures on a document are to be proved to be of the person alleged to have signed the document. S, 68 deals with proof of execution of a document required by law to be attested, and in case of a Will it cannot be used as evidence until one attesting witness at least has been called (in the Court to record his evidence) 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. This is irrespective of the fact if the Will has been registered under the Registration Act or not. Then, u/s 71, if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. This may mean that in such a circumstance the registering officer can be examined to prove the execution of a document.
Registered Will, when not relied by Court:
Appreciation of evidence about various aspects of Will and many other documents:
(18). rubber stamp endorsements of Sub-Registrar are reproduced.
(19) IT is now a settled proposition of law that the propounder of a Will, Ramesh Dutt in the present case, has to prove the execution of the Will and its genuineness and in that context he has to eliminate the suspicious circumstances if any that may be surrounding the Will. Can it be said that non-production of the original Will and the suspicious circumstances which have been brought on record are fatal to the Will propounded by Ramesh Dutt, as it was contended ? Ramesh Dutt has stated that he was not present at the time of the preparation, execution or registration of the Will. In a way, he feigns ignorance. He must have come to know about the execution of the Will the day it is purported to have been executed which date is 8.5.1974 as is appearing in the Will. Both the attesting witnesses are only related to him. Then, he is the one who collected the Will from the office of the Sub-Registrar which fact had been suppressed and was admitted during the course of these proceedings. He does not say if after having collected the Will he gave it to his deceased mother. He was one of the executors named in the Will. Compared to the 'Will' of 1968, Ramesh Dutt was the principal beneficiary. He has given different versions as to how the Will was in possession of Shiv Dutt. He says that Shiv Dutt supplied him the particulars of the Will and thereafter he was able to get certified copy of the same from the office of the Sub-Registrar. Ramesh Dutt is serving a Notice dated 1.8.1980 (Ex. RW1/PA) on Shiv Dutt calling upon him to produce the original Will and certain other documents when on 30.7.1980 he had already obtained certified copy of the Will from the office of the Sub-Registrar. As noted above, in the cross-examination of Shiv Dutt, an altogether different version has been given as to how Shiv Dutt came into possession of the original Will. I cannot believe the version of Ramesh Dutt that original Will was in possession of Shiv Dutt. There is thus no evidence about the loss of the original Will and no circumstances exist on record for allowing secondary evidence to be given of the existence, condition or contents of the Will. The case does not fall u/s 65 of the Evidence Act. It cannot be said that copy of the Will on the record of the office of the Sub-Registrar is itself a primary evidence. In fact, it was never so contended. Certified copy Ex. P-4 itself contains an endorsement in someone's hand that the contents of the Will had been read out and explained to the executant. Dr. Madan Lal says that this endorsement which has been marked 'X' was written and signed by him. Then, there are various other endorsements on rubber stamps and signatures of the Sub-Registrar on back pages of the Will and signatures of the executant and attesting/identifying witnesses on the Will. The copy of the Will in the office of the Sub-Registrar cannot itself be described as primary evidence. It is only a secondary evidence. Under the law, even a registered Will can be revoked by an unregistered Will. As seen above, & Will can also be revoked by burning, tearing or otherwise destroying the same by the testator. Original Will in the present case is not forthcoming and I have disbelieved Ramesh Dutt when he says it was in possession of Shiv Dutt. I may note that in English law if the Will traced to testator's possession before his death is not forthcoming at his death, there is a presumption, though rebuttable, that he revoked it by destruction before his death. The law on this was laid by the Supreme Court in Durga Parshad v. Debi Charan (AIR 1979 SC 145). In this the court held that no such presumption, as in English law, could be raised without more. But, then non-production of the original Will would be a circumstance coupled with other suspicious circumstances, to be fatal to the case of Ramesh Dutt. It also appears to me that since no secondary evidence of the Will could have been led in the circumstances of the present case, the Will could not be held to have been proved, and this in itself is sufficient to throw out the petition for grant of probate.
Attesting Witness, why not believed:-
(20) THE preparation and execution of the Will are shrouded in mystery. There are suspicious circumstances attending the preparation and execution of the Will and it will be, therefore, for the propounder Ramesh Dutt to explain them away. Dr. Madan Lal is the only attesting witness produced to prove the Will. He is not a resident of Delhi. He could not be a frequent visitor to the house of Gian Devi. According to him, the Will was prepared, executed and registered on the same day. This could not be true. The Will is purported to have been executed on 8.5.1974 and presented for registration on 28.5.1974 and as per endorsement appearing thereon, registered on the following day, i.e. 29.5.1974. Dr. Madan Lal said he had come to Delhi on that day per chance from Kapurthala, of which place he was the permanent resident, to meet his son in Faridabad. Instead of going to Faridabad, he came to the house of Gian Devi and from there was taken to the office of the Sub-Registrar, New Delhi. Then, he said that the Will was got typed on instructions given by Gian Devi, attested to by him and the other witness and then presented for registration. This is such a material discrepancy in the statement of Dr. Madan Lal which led even Mr. Mukul Rohatgi, learned counsel for Ramesh Dutt, to fall back on the theory of Sub-Registrar being the attesting witness though he did say that the witness was deposing to the happening about 10 years earlier.
Comparison with Previous “Will” and pendency of Probate case about previous Will:
20.1. The Will could not have been prepared without the Will of 1968 being before the scribe. This Will of 1968 is subject-matter of probate proceedings in the court of the District Judge and it has yet to be decided if it is the validly executed Will of Gian Devi. The fact remains that passages from the Will of 1968 have been copied verbatim in the Will in question. Mr. Rohatgi had to concede that the Will of 1968 must have been before the typist when he typed the Will in question. This, to my mind, was an important circumstance which does not find mention in the testimony of Dr. Madan Lal and has been suppressed. There are various other contradictions in the testimony of Dr. Madan Lal which are too numerous to mention and which make his statement unreliable. I cannot, therefore, possibly rely on the testimony of Dr. Madan Lal in respect of preparation and execution of the Will.
Even when the Sub-Registrar will testify his evidence in Court, that cannot make believe a Forged Will:
(21) IT was contended by Mr. Rohatgi that once it was proved that the Will was properly and validly registered, it was not very material as to what happened earlier while preparing and executing the Will. He said statement of Mr. A.K. Jain, Sub-Registrar, who registered the Will, had gone unchallenged which showed that the objector admitted that the Will was properly registered. Mr. Rohatgi said that registration of the Will meant that Gian Devi, the testator, admitted the execution of the Will before the registering officer and it was only after that that the Sub-Registrar was satisfied about the due execution of the Will that he registered the same. Mr. Rohatgi admitted that there were discrepancies in the statement of Dr. Madan Lal, the sole attesting witness examined, but he said these were not such as to ignore the testimony of Dr. Madan Lal altogether. He said it was undeniable that Dr. Madan Lal was present at the time of registration of the Will. In any case, he said that if the court chose not to rely on the testimony of Dr. Madan Lal, then Mr. A.K. Jain, the Sub-Registrar, who himself was an attesting witness to the execution of the Will, was examined in court fulfilling the requirement of law regarding proof of the Will. [The argument was considered and rejected]. Some- what similar was the question before the Privy Council in Surendra Bahadur v. Behari Singh (AIR. 1939 PC. 117) where the Board observed as under :- "Where Sub-Registrar and identifying witnesses have affixed their signatures to the registration endorsement under Ss. 58 and 59, Registration Act, admitting execution of a mortgage deed but there is no evidence that signatures were made in the presence of the executant, the signatures, assuming that it would be legitimate to look at the proceedings relating to the registration of mortgage deed for the purpose of proving the due execution and attestation thereof, cannot be said to have proved due attestation as required by S. 59, T.P.Act. If the particulars which are to be endorsed on documents which are admitted for registration under S. 58, Registration Act, do not include the statements as to whether the signatures were made in the presence of the executant, Ss. 58, 59 and 60, Registration Act, are of no avail. The endorsements made at the time of registration are relevant to the matter of registration only." In M.L.Abdul Jabbar Sahib v. H. Venkata Sastri (AIR. 1969 SC. 1147), one of the questions before the Supreme Court was if the security bond was attested by two witnesses. It was contended that the Sub-Registrar and the identifying witnesses had attested the document. The court examined the question of 'attested' with reference to S. 3 of the TPA and observed that it was essential that the witness should have put his signature animo attestandi, that is for the purpose of attesting that he had seen the executant sign or had received from him a personal acknowledgment of his signature. If a person put his signature on the document for some other purpose, e.g. to certify that he was a scribe or an identifier or a registering officer, he was not an attesting witness. The court also observed that prima facie the registering officer put his signature on the document in discharge of his statutory duty u/s 59 of the Registration Act and not for the purpose of attesting it or certifying that he had received from the executant acknowledgment of his signature. In the present proceeding, the case of Ramesh Dutt has been that the Will duly executed was presented before the Sub-Registrar for registration. Gian Devi had placed her signatures at place marked 'A' on Will Ex. P-4 so as to appear that it was intended thereby to give effect to the writing as a Will and further the two attesting witnesses, namely. Dr. Madan Lal and Baij Nath, had signed the Will in the presence of Gian Devi who had also signed in their presence. It was nobody's case that Gian Devi again signed the Will on its back pages before the Sub-Registrar as an executant and that it was attested again by Dr. Madan Lal and Baij Nath. Signatures on the back of the Will by Gian Devi could be of her admission of having executed the Will and those of Dr. Madan Lal and Baij Nath as identifying witnesses. There was yet another signature of Mr. Yogendrapal, Advocate, as an identifying witness. Endorsements and signatures on the back of the Will could not be intended to fulfil the requirements of S. 63 of the Registration Act. According to the case of Ramesh Dutt, the attesting witnesses were of the choice of Gian Devi, the testator. She did not choose the Sub-Registrar or Mr. Yogendrapal as attesting witnesses. I, therefore, cannot accept the proposition in the present case that the Sub-Registrar when he signed the Will as the registering officer had animo attestandi and unwittingly he became an attesting witness.
(22) Para 22 not found in the book.
Not giving benefit to Charity and other relatives is suspicious:
(23) IT was not disputed that Gian Devi was a philanthropist. She was a rich lady and was wealth-tax and income-tax assessee. A trust in her name was running a College at Delhi. In the Will of 1968 she had bequeathed one flat to the trust in her name. In the Will in question, the trust was deprived, in effect, of this flat. There appeared to be no reason she should do that. It was quite unnatural of her to do so. Gian Devi bad a number of relatives and friends in Delhi and could get best possible legal advice. (Selecting outsiders as Witnesses is suspicious). There again appeared to be no reason why she should choose Dr. Madan Lal and Baij Nath as her witnesses to the Will and (She was rich to call the Sub-Registrar to her House is another suspicious circumstances) why she should go to Asaf Ali Road, New Delhi, where office of the Sub-Registrar was situated, and to get the Will prepared from a typist of her own and then present the same for registration (Not being accompanied by children is suspicious) without bringing any of her children in picture, as contended by Ramesh Dutt. Baij Nath and Mr. Yogendrapal, Advocate, have not been produced in court for their statements. (Legal loop holes will not prove your case, please note:) Production of one attesting witness may fulfil the requirements of law regarding proof of the Will but non-examination of other attesting witnesses could possibly raise an adverse presumption in a given circumstance. Propounder has to examine all available witnesses when truth and genuineness of the Will is in question. He has to produce the best possible evidence. In the facts of the present case, I will raise such an adverse presumption against Ramesh Dutt for not examining Baij Nath and Mr. Yogendrapal. Another circumstance that goes against Ramesh Dutt is withholding of the names of the attesting witnesses for as long a period as possible. The Will has been drafted in violation of the Delhi Document Writers Licensing Rules 1966. Throughout the stand has been that the Will was prepared, executed and presented for registration the same day. This has been changed in this appeal and now it is the admitted case that the Will was executed and registered on different dates. (Signature of testator not proved:) Ramesh Dutt is unable to identify the signatures of his mother on the Will of 1968 when put to him. He does not identify the signatures of his mother on the Will Ex. P-4 as well. Compared to the Will of 1968, Sh