Full Judgment Text
* THE HIGH COURT OF DELHI AT NEW DELHI
+ IA 13192/2009 in C.S (OS) 1943/1998
Date of Decision: 15.05.2013
SITA KASHYAP THRU LRs.
....….Plaintiff
Through: Mr.S.K.Puri, Sr. Adv. with
Mr.Gaurav Puri, Mr.Nupur
Pandey, Ms.Jasmine Sethi,
Mr.Praveen Kumar, Advs.
Versus
HARBANS KASHYAP & ORS.
...Defendant
Through: Mr.H.L.Kapur with Mr.Ashish
Kapur, Advs. for D1.
CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This application is filed by Ms. Benu Puri seeking her
substitution in place of the deceased plaintiff No. 1 Sita Kashyap by
CS (OS) 1943/1998 Page 1 of 26
virtue of registered will dated 14.06.2004 in her favour. On
29.01.2010, the following issues were framed:
“(i) Whether Benu Puri is the LR of deceased Sita Kashyap in
terms of the registered Will dated 14.06.2004, registered on
15.06.2004 and if so, its effect?
(ii) Relief”.
2. Subsequently, vide order dated 02.06.2012, the issues were
recast as under:
th
“(i) Whether the Will dated 14 June, 2004 was validy
executed by Late Smt. Sita Kashyap? OPP.
(ii) Relief”.
3. The suit was initially filed by the two sisters namely Sita
Kashyap and Leela Puri against their brother Harbans Kashyap and the
LRs of their deceased brother Jagdish Chander Kashyap. The
preliminary decree of partition of property No. 5A, Guru Gobind Singh
Marg, New Rohtak Road, Karol Bagh, New Delhi was passed by this
court on 10.05.2007, holding each party having one-fourth undivided
share in this property. Subsequently, a final decree of partition was
passed on 19.11.2007, whereby the said property was directed to be
CS (OS) 1943/1998 Page 2 of 26
sold by public auction, and the parties entitled to bid therein to the
exclusion of their shares. After the final decree, Sita Kashyap died and
the applicant Benu Puri, who is the daughter of Leela Kashyap has
sought substitution in her place on the basis of a Will dated
14.06.2004. The said Will is disputed by the defendants. The
applicant Benu Puri has examined herself as PW1 and witness Vaneeta
Kapoor as PW2. Mr. Naveen Kumar Jaggi, who allegedly drafted the
said Will is also examined as PW3. The defendant No. 1 Harbans
Kashyap has examined himself as D1W1. No evidence has been led
by the defendants No. 2 and 3 (LRs of deceased brother Jagdish
Chander Kashyap).
4. I have heard learned senior counsel for the applicant and the
learned counsel for the defendants.
5. Since by execution of Will, a person intends to alter the rule of
succession or desires a particular form of inheritance, it is upon the
propounder of a Will to prove the execution and validity thereof to the
satisfaction of the judicial conscience. Thereafter, the onus would shift
to the defendant, who intends to assail the execution or the validity of
CS (OS) 1943/1998 Page 3 of 26
the Will. Creation of suspicious circumstances by the defendant
assailing the Will would cast further onus upon the propounder to
remove those suspicious circumstances. There cannot be any dispute
that registration of the Will itself is no assurance that the same is
genuine and validly executed. It is also settled proposition that each
and every circumstance would not be a suspicious circumstance. What
is alleged by the defendant, would have to be judged in facts and
circumstances of each case.
6. This court in the case of Pratap Singh & Another Vs. State &
Anr., 2010 VII AD (Delhi) 490 analyzed the law as regard to the
proving of a Will and observed thus:
“6. The principles to be applied by a Court for grant
of probate have been succinctly laid down by the
Hon’ble Supreme Court in Shashi Kumar
Banerjee & Others v. Subodh Kumar Banerjee
AIR 1964 SC 529 wherein their Lordships held:-
“4. The principles which govern the proving of
a will are well settled; (see H. Venkatachala
Iyengar v. B. N. Thimmajamma, AIR 1959 SC
443 and Rani Purnima Devi v. Khagendra
Narayan Dev, : (1962) 3 SCR 195 : (AIR 1962
SC 567). 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
CS (OS) 1943/1998 Page 4 of 26
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 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.”
7. It is not for the Court to consider whether the
disposition of the property was good or bad. The
duty of the Probate Court is to see whether prima
facie, the document constitutes a Will and if so
whether the propounder has been able to satisfy the
CS (OS) 1943/1998 Page 5 of 26
conscience of the Court that the Will was a validly
executed and genuine document, signed out of free
will, propounded in a sound disposition of mind,
after having understood the nature and effect
thereof. The Privy Council in Motibai Hormusjee
Kanga v. Jamsetjee Hormusjee Kanga, AIR 1924
PC 28 observed “a man may act foolishly and even
heartlessly; if he acts with full comprehension of
what he is doing the Court will not interfere with
the exercise of his volition.”
7. Similarly, this court in Vidya Sagar Soni Vs. State & Ors.,
decision dated 28.08.2006, Probate Case No. 39/1985 also had the
occasion to deal with similar matter as to what would constitute
suspicious circumstances and what form of affirmative proof would be
required to satisfy the judicial conscience that the document
propounded is the last legal and valid testament. The principles culled
out on these aspects are as under:
“ 5. Section 2(h) of the Indian Succession Act, 1925 defines
a will to mean the legal declaration of the intention of a
testator with respect to his property which he desires to
be carried into effect after his death.
6. The legal burden to prove due execution always lies
upon the person propounding a will. The propounder
must satisfy the judicial conscience of the court that the
instrument so propounded is the last will of a free and
capable testator.
CS (OS) 1943/1998 Page 6 of 26
7. A will is a solemn document, being written by a person
who is dead and who cannot be called in evidence to
testify about the due execution of the will. It is the living
who have to establish the will. It naturally throws a
heavy burden on the court to satisfy its judicial
conscience that the burden of proof of due execution is
fully discharged and every suspicious circumstance
explained.
8. No specific standard of proof can be enunciated which
must be applicable to all the cases. Every case depends
upon its own circumstances. Apart from other proof,
conduct of parties is very material and has considerable
bearing on evidence as to the genuineness of the will
which is propounded. Courts have to be vigilant and
zealous in examining evidence. Rules relating to proof of
wills are not rules of Laws but are rules of prudence.
Normally, a will is executed by a person where he
desirous, to either alter the normal rule of succession, or
where he desirous to settle his estate in a particular
manner amongst the legal heirs. Therefore, though to be
kept in mind, as to what is the nature of bequest too much
importance cannot be attached to the disproportionate
nature of a bequest. However, as observed in , Rabindra
Nath Mukherjee and Anr. v. Panchanan Banerjee (dead)
by LRs, disproportionate nature of a bequest is no doubt
a suspicious circumstance to be kept in mind, but, being a
mere suspicion, it is capable of being dispelled by other
evidence to show voluntary character of the document.
9. Therefore, the first rule to appreciate evidence is to
peruse the will. Normally, if there is rationality in a will,
a presumption arises about due execution. Of course,
being a presumption, it is rebuttable.
CS (OS) 1943/1998 Page 7 of 26
10. As observed in Smt. Kamla Devi v. Kishori Lal Labhu
Ram and Ors., the omission of a close relation from the
bounty of a testator raises a presumption in favor of
some undue influence. The probative force of such a
testament rises and falls in inverse ratio to its
unreasonableness.
11. The more unreasonable an instrument is, the less
probative value it carries. Where the terms of a will are
unusual and the evidence of testamentary capacity
doubtful, or due execution doubtful, the vigilance of the
Court will be roused and before pronouncing in favor of
the will, the court would microscopically examine the
evidence to be satisfied beyond all reasonable doubt that
the testator was fully conversant of the contents and
executed the will fully aware of what he was doing.
12. Expanding on the care and caution to be adopted by
courts, and presumptions to be raised, in the decision
reported as (1864) 3 Sw & Tr. 431 In The Goods of Geale,
it was opined that where a person is illiterate or semi
literate or the will is in a language not spoken or
understood by the executor, the court would require
evidence to affirmatively establish that the testator
understood and approved all the contents of the will.
13. This affirmative proof of the testator's knowledge and
approval must be strong enough to satisfy the court, in
the particular circumstances, that the will was duly
executed.
14. One form of affirmative proof is to establish that the
will was read over by, or to, the testator when he
executed it. If a testator merely cats his eye over the will,
CS (OS) 1943/1998 Page 8 of 26
this may not be sufficient. [see 1971 P.62 Re Moris). In the
report published as (1867) 1 P.D.359 Goodacr v. Smith, it
was held that another form of affirmative proof is to
establish that the testator gave instructions for his will
and that the will was drafted in accordance with those
instructions.
15. Courts have to evaluate evidence pertaining to the
circumstances under which the will was prepared. If a
will is prepared and executed under circumstances which
raise a well grounded suspicion that the executor did not
express his mind under the will, probate would not be
granted unless that suspicion is removed.
16. As held in the report published as (1838) 2 Moo P.C.
480 Barry v. Butlin, a classic instance of suspicious
circumstances is where the will was prepared by a
person who took a substantial benefit under it. Another
instance is as opined in the report published as (1890) 63
LT 465 Brown v. Fisher where a person taking benefit
under the will has an active role to play in the execution
of the will.
17. A word of caution. Circumstances can only raise a
suspicion if they are circumstances attending, or at least
relevant to the preparation and execution of the will
itself.
18. How the legal heirs acted and how and when a will
was propounded after the death of the executor are also
relevant to decide upon, where the will is genuine or a
created or a procured document.
CS (OS) 1943/1998 Page 9 of 26
19. Another point that has to be considered is about the
improbability in the manner in which the instrument is
scripted. As observed in the report published as
H.Venkatachala Iyengar V. B.N. Thimmajamma and
Ors., instance of suspicious circumstances would be
alleged signatures of the testator being shaky and
doubtful, condition of the testator's mind being feeble and
debilitated, bequest being unnatural, improbable or
unfair. Apart from these infirmities, propounder taking a
prominent part in the execution of the will, more so when
substantial benefits flow to them are all presumptive of
the will not being duly executed and or of suspicious
circumstances.
20. Suspicious circumstances are a presumption to hold
against the will. Greater is the suspicion more heavy
would be the onus to be discharged by he who propounds
the will.
21. Reference to satisfaction of judicial conscience is a
heritage inherited by court's since time immemorial for
the reason, as noted above, a will is a solemn declaration
as per which the living have to carry out the wishes of a
dead person”.
8. Section 68 of the Indian Evidence Act deals with the proof of
execution of a document required by law to be attested. This Section
lays down that if the deed sought to be proved is a document required
by law to be attested and if there be an attesting witness alive and
CS (OS) 1943/1998 Page 10 of 26
subject to process of the court and capable of giving evidence, he must
be called to prove execution. Execution consists in signing a document
written out, read over and understood and to go through the formalities
necessary for the validity of legal act. Section 63 of the Succession
Act gives the meaning of attestation as under:
“63. Execution of unprivileged Wills.—Every
testator, not being a solider employed in an expedition
or engaged in actual warfare, or an airman so
employed or engaged, or a mariner at sea, shall
execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the
will, or it shall be signed by some other person in his
presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so
placed that it shall appear that it was intended thereby
to give effect to the writing as will.
(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 the
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."
CS (OS) 1943/1998 Page 11 of 26
It is clear from the definition that the attesting witness must state that
each of the two witnesses has seen the executor sign or affix his mark
to the instrument or has seen some other persons sign the instrument in
the presence and by the direction of the executant. The witness should
further state that each of the attesting witnesses signed the instrument
in the presence of the executant. These are the ingredients of attestation
and they have to be proved by the witnesses. The word 'execution' in
Section 68 includes attestation as required by law.
9. While referring to the Will, the learned counsel for the defendant
urged that many facts mentioned therein were incorrect and so, it could
not be said to have been drafted at her instance by Mr. Naveen Kumar
Jaggi (PW3) or read over to her by him or the witnesses. It is also his
submission that Ms. Sita Kashyap was not in sound state of mind and
was also at the advanced stage of cataract and thus, could not
understand the contents of the Will or read the same. It is his
submission that the Will has been procured and manipulated by Ms.
Benu Puri and since Ms. Sita Kashyap was aged and dependent upon
her, she was under her constant undue influence. The learned counsel
CS (OS) 1943/1998 Page 12 of 26
submits that place of birth of Sita Kashyap mentioned in Will as
Sialkot was incorrect, as she was born at Kandansian, and not at
Sialkot. Further, the chronology of her brothers and sister as given in
the Will was incorrect in that her sister Leela was next to her and not to
her brother Harbans Kashyap as is mentioned in the Will. Further, not
only her age is wrongly mentioned as 76 years as against of 82, but the
ages of her brothers and sister as mentioned were also incorrect.
Learned counsel also submits that the suit filed by the defendants
against the plaintiffs in respect of shop No. 2378 was decreed in the
year 2001 to her knowledge, the bequeathing of the tenancy rights in
respect of the said shop in the Will, was apparently incorrect. Further,
Sita Kashyap also knew that the probate case (42/98) filed by her in
respect of the Will of her mother Kartar Devi was dismissed much
before 2004, and thus, the mention of this in the Will was also
incorrect. Further, he submits that Will mentions of bequeathing a plot
measuring 200 sq. yds., which she never owned or possessed. There
was no number, description or identity of this plot mentioned in the
Will. Learned counsel further submits that there was no bank account
CS (OS) 1943/1998 Page 13 of 26
or locker possessed by Ms. Kashyap and the mention thereof in the
Will was also incorrect.
10. By pointing out the contents in the Will as noted above, the
learned counsel submits that the Will was a fabricated and procured
document at the instance of Benu Puri, who had got prepared the same.
It is his submission that if the Will would have been drafted at the
instance of Ms. Kashyap or read over to her or even read by her, there
would not have been these incorrect facts which were personal to her.
Predicated on all this, it is submitted that these suspicious
circumstances go to the root of the execution of a free and voluntary
Will. Further, the learned counsel also submits that the Will has not
been properly attested as per law in that the two attesting witnesses
Rajesh Puri and Neeraj Puri have not been examined and none of the
witnesses examined has stated Ms. Kashyap signed the same in their
presence and they signed the Will in her presence and all signed the
same in the presence of each other.
11. As various suspicious circumstances have been urged by the
learned counsel for the defendant, the testimony of the propounder Ms.
CS (OS) 1943/1998 Page 14 of 26
Benu Puri and the attesting witness Vaneeta Kapoor as also of Mr.
Jaggi would have to be looked into from that perspective. Admittedly,
Ms. Kashyap had been living at Jaipur residence of her sister Leela
Puri where Benu Puri had also been residing along with them. It is
also admitted that Ms. Benu had been looking after Ms. Kashyap and
accompanying her whenever and wherever she desired. It is also
admitted that Ms. Kashyap had been having advanced cataract of eyes
since 2002 and was operated upon in July, 2002.
12. A look at the Will apparently substantiates the submissions of
the learned counsel for the defendant that it has various incorrect facts
and this was, in fact, not controverted by the learned senior counsel for
the applicant, who tried to justify the same by submitting that all these
facts were as per the information given by Ms. Kashyap.
13. Though Benu had stated that on not being permitted to enter the
suit premises by her brother, Ms. Kashyap stayed in the property of an
acquaintance at E-44, Jangpura on her visit to Delhi; Ms. Vaneeta
Kapoor had categorically stated and admitted that Benu was her close
friend and they had family relations and further stated that Ms.
CS (OS) 1943/1998 Page 15 of 26
Kashyap had desired that on her visit to Delhi, she would be staying
with her for few days. In answer to a question, Benu had stated that it
was after the last rites of Ms. Kashyap that she found the Will in her
almirah on being informed by one Mr. Jaggi. However, she admitted
in cross examination that Mr. Jaggi was their family friend and known
to her. When confronted about the age of Ms. Kashyap to be 82 years,
Ms. Benu could not deny the same, but stated that from her
appearance, she looked younger. It was put to her that she had got
stated the ages of all by guess in the Will. It was put to her that Ms.
Kashyap was bed-ridden and otherwise indisposed since 2002 and was
physically as well as mentally dependent, being not able to move
without the help and further that because of cataract of both the eyes,
was not able to read or write from 2002 till her death in 2004, and
further that the Will was got drafted or prepared at her instructions. It
was specifically put to her that because of old age and cataract, Ms.
Kashyap could not see clearly and understand, and that she had not
seen the contents of the Will or the nature of the document and she got
her signature by ruse / deception.
CS (OS) 1943/1998 Page 16 of 26
14. Further, at one place, she stated that after the last rites of Ms.
Kashyap, Mr. Jaggi informed her about the Will lying in her almirah;
whereas in her cross examination, she had stated about her counsel
having informed the court about the Will on the very next day of her
death.
15. Initially, Ms. Benu had stated that she had been teaching at
Jaipur since 1989 and visiting Delhi, but, then she stated staying at
Panchsheel Park, Delhi since September, 2010.
16. From the above, it would be seen that Ms. Kashyap had
advanced stage of cataract of both eyes at the time of execution of
Will. She had been living at Jaipur and had come to Delhi only for the
purpose of Will. She had no vehicle of her own and was dependent
upon Ms. Benu, who had been living with her at Jaipur at the residence
of her mother. May be, at the relevant time, Ms. Benu was living at
Delhi, but, from all this, it appears that Ms. Kashyap was brought to
Delhi by Ms. Benu. There does not appear to be any good reason for
Ms. Kashyap to stay with Vaneeta Kapoor when there was house of
Ms. Benu in Delhi. May be that Ms. Kashyap had stayed with Vaneeta
CS (OS) 1943/1998 Page 17 of 26
Kapoor, but, having regard to her physical condition, it could not be
believed that she was left alone or in the exclusive care of Vaneeta
Kapoor by Ms. Benu. This all suggests that she had been also actively
associated with Ms. Kashyap during all this period of her stay at Delhi.
17. This is further substantiated from the fact that if Ms. Benu had
not accompanied Ms. Kashyap to the office of Sub-Registrar for
registration of the Will, how could she state that Ms. Kashyap & Ms.
Vaneeta Kapoor as also Mr. Deepak Kohli signed on the back of the
Will before the Sub-Registrar.
18. On the other hand, Vaneeta Kapoor had categorically stated that
th
before leaving her house on 16 June, 2004 Ms. Kashyap informed her
that she had informed her lawyer Mr. Navin Kumar Jaggi that the
original Will would be found lying in her almirah and after her death,
Mr. Jaggi would inform Ms. Benu of the same. She candidly admitted
that she also informed Ms. Benu that there was a Will left by Ms.
Kashyap. Inconsistent stands as regard to knowing about the Will
simply suggests that Ms. Benu was well aware of the Will right from
the time of its execution.
CS (OS) 1943/1998 Page 18 of 26
19. According to Vaneeta Kapoor (PW2), she had taken Ms.
Kashyap to the residence of her nephew Neeraj Puri on 14.06.2004
where her other nephew Rajesh Puri also came for witnessing the Will.
She kept waiting in her car for transporting her to the office of Mr.
Jaggi. She stated that Ms. Kashyap brought the Will duly signed and
also requested her to attest as third witness. Since there was no table
for signing, she signed the Will in the office of Mr. Jaggi. Beside her,
one Mr. Deepak Kohli, a junior of Mr. Jaggi also signed the Will.
Now, from this part of the statement, it comes out to be that the Will
was already signed by Ms. Kashyap and Mr. Neeraj Puri and Rajesh
Puri when Ms. Kashyap came out of the residence of Neeraj, and that
Ms. Vaneeta Kapoor signed the same only in the office of Mr. Jaggi. It
is not understandable that when the Will had already been signed by
the two witnesses Neeraj and Rajesh, what was the necessity of
signatures of Vaneeta Kapoor and then of Deepak Kohli. In any case,
the Will had already been attested by Neeraj Puri and Rajesh Puri at
their residence before it was signed by Vaneeta Kapoor and Deepak
Kohli. None of those attesting witnesses Neeraj and Rajesh have been
examined. The signatures of Vaneeta Kapoor and Deepak Kohli on the
CS (OS) 1943/1998 Page 19 of 26
Will, at the most, could be said to be just for the sake of formality. It is
nowhere stated by Vaneeta Kapoor that the Will was read by or over to
Ms. Kashyap in her presence at any point of time. In fact, from the
advanced stage of cataract of both eyes, Ms. Kashyap was certainly
unable to read of her own. There was nothing on record to suggest that
at any point of time, the Will was ever read over to her by anyone.
Having regard to the large number of inaccurate facts as noted above,
this suspicion gets strengthened that Ms. Kashyap did not know the
contents of the Will and had simply signed the same.
20. From the testimony of Vaneeta Kapoor, it is evidenced that the
Will had already been signed by Ms. Kashyap on 14.06.2004 at the
residence of Rajesh Puri, and that she only signed the same in the
office of Mr. Jaggi. Ms. Vaneeta Kapoor also admitted that the Will
was not dictated by Ms. Kashyap or read over to her in her presence.
That being the admitted position, she was not the witness to the
signatures of any of the two attesting witnesses namely Rajesh and
Neeraj Puri, nor that of Ms. Kashyap. As is noted above, it is the
requirement of law of execution of Wills as enunciated in Section 63 of
CS (OS) 1943/1998 Page 20 of 26
the Succession Act that the attesting witness must state that each of the
two witnesses has seen the executor sign or affix his mark to the
instrument, and further, that each of the attesting witnesses signed the
instrument in the presence of the executant. These are the basic
ingredients of attestation which have not been established. The
suggestions given to Vaneeta Kapoor that she had signed the Will on
the asking of Benu Puri to help her, further gains importance in view of
the fact that the Will was neither signed by Ms. Kashyap in her
presence nor it was read over by her or in her presence. It is also
surprising, if to the knowledge of Ms. Vaneeta Kapoor, Ms. Kashyap
was about 84 years in the year 2004, then, how come that her age was
mentioned as 76 years in the Will, and also that when Benu Puri was
living in Delhi and had throughout been helping and looking after Ms.
Kashyap, the latter in advanced stage of cataract would chose to stay
with Vaneeta and not Benu Puri. Further, according to her, she had
th th
taken Ms. Kashyap to the office of Mr. Jaggi on 10 June and 14
June, 2004, whereas Mr. Jaggi had stated Ms. Kashyap having visited
th th th
his office on 10 , 13 and 14 June, 2004. According to Mr. Jaggi, she
th
had given the instructions on 10 June and had collected the Will on
CS (OS) 1943/1998 Page 21 of 26
th th
13 June and returned the same on 14 June, 2004. He had also stated
that on the first visit, Ms. Kashyap was alone, whereas, on subsequent
visit, she was accompanied with Vaneeta Kapoor. If Vaneeta Kapoor
th
had not taken her to Mr. Jaggi’s office on 13 June, 2004, then who
else might have taken, is another suspicious circumstance.
21. Mr. Jaggi stated having signed the Will only as he had drafted
the same. He is not a witness to the signatures of the Will by Ms.
Kashyap. According to him also, the Will was already signed by her
and two witnesses when she came to his office. It was put to him that
the Will was not drafted by him on the instructions of Ms. Kashyap,
but, at the instance of Ms. Benu Puri. He also stated that Ms. Kashyap
had claimed her age to be 83-84 years in 2004. If that was so, how he
wrote her age as 76 years in the Will, has not been explained. He also
could not explain the chronology of the siblings of Ms. Kashyap. If it
was so, then how he could write the incorrect chronology as also the
years of births of Ms. Kashyap and her sister and brothers. Regarding
other incorrect facts such as mention of bank account and locker, a
plot measuring 200 sq. yds., the answers given by Mr. Jaggi are that it
CS (OS) 1943/1998 Page 22 of 26
was on the information given by Ms. Kashyap. This all leads to
suggest that the Will was not drafted on the instructions of Ms.
Kashyap or she was unable to understand the contents thereof or the
Will was not read over to her, but, was got signed from her either
under some influence or on some pretext. If it was otherwise, she
would have corrected the Will if read over or if it was with her from
th th
13 to 14 June, 2004.
22. The Will is seen to have been signed by the witnesses Neeraj
th
Puri and Rajesh Puri on 14 June, whereas, it bears the date of
th
execution at two places as 15 June, 2004. It was stated by Mr. Jaggi
th th
that his clerk had filled up the dates as 15 June instead of 14 June
when submitting to the office of Sub-Registrar. According to him,
Deepak Kohli and Ms. Kashyap had informed him about this. This
was nothing but hearsay. Deepak Kohli has not been examined and
Vaneeta Kapoor did not say anything in this regard. This discrepancy
has remained unexplained. Further, from the glaring discrepancy as to
who informed Benu Puri and when about the Will, also further
suggests of not only her knowing about the Will, but, actively involved
CS (OS) 1943/1998 Page 23 of 26
and associated in its execution. Though, that factor alone may not
constitute a suspicious circumstance, but, given the facts as discussed
above, this would only inform that the Will seems to have been
prepared only at the instance of Ms. Benu Puri. As is noted above, she
had stated that Mr. Jaggi had informed her after the last rites of Ms.
Kashyap. Mr. Jaggi had also stated almost on similar lines, but,
Ms.Benu Puri, at another place, stated that her counsel had informed
the court immediately on the next day of death of Ms. Kashyap about
the execution of the Will. Ms. Vaneeta Kapoor had also stated that
she had informed Benu about the Will after its execution. It would not
appeal to any reason that Benu, who was at Delhi and had been looking
after Ms. Kashyap and also accompanying her outside, would not be
knowing about her visit to Delhi and staying with her close friend
Vaneeta Kapoor for several days and visiting the office of Mr. Jaggi
and executing a Will favouring her.
23. The suspicious circumstances which have been highlighted by
the learned counsel for the defendant have not been satisfactory
explained by the applicant and her witnesses, appealing to the
CS (OS) 1943/1998 Page 24 of 26
conscience of the court. While being conscious of the proposition of
law settled in catena of decisions, reference being made to Pentakota
Satyanarayana and Ors. Vs. Pentakota Seetharatnam and Ors.,
(2005) 8 SCC 67 that any and every circumstance is not a suspicious
circumstance, and that active participation of the beneficiary as also
exclusion of natural heirs, may themselves be not suspicious
circumstances, I am of the considered view that the Will is surrounded
by various suspicions as discussed above, and which have not been
satisfactorily removed by the applicant. Thus, the peculiar facts of the
case have led me to conclude that at the relevant time, Ms. Kashyap
was either not in a sound state of mind that she could understand the
nature and effect of the dis-position or did not consciously put her
signatures thereon of her own free will, or the Will was not prepared
on her instructions and/or was not read over to her and was got signed
by her under some extraneous factor.
24. From the above discussion, it comes out to be that the findings
on the issue need to be recorded against the applicant and that being so,
she is held to be not entitled to the relief claimed by her on the basis of
CS (OS) 1943/1998 Page 25 of 26
the said Will. Consequently, the applicant would be entitled to inherit
the share of Sita Kashyap in the suit property as per law of succession
along with other legal heirs including the defendants.
25. Application stands disposed of accordingly.
M.L. MEHTA, J.
MAY 15, 2013
akb
CS (OS) 1943/1998 Page 26 of 26
+ IA 13192/2009 in C.S (OS) 1943/1998
Date of Decision: 15.05.2013
SITA KASHYAP THRU LRs.
....….Plaintiff
Through: Mr.S.K.Puri, Sr. Adv. with
Mr.Gaurav Puri, Mr.Nupur
Pandey, Ms.Jasmine Sethi,
Mr.Praveen Kumar, Advs.
Versus
HARBANS KASHYAP & ORS.
...Defendant
Through: Mr.H.L.Kapur with Mr.Ashish
Kapur, Advs. for D1.
CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This application is filed by Ms. Benu Puri seeking her
substitution in place of the deceased plaintiff No. 1 Sita Kashyap by
CS (OS) 1943/1998 Page 1 of 26
virtue of registered will dated 14.06.2004 in her favour. On
29.01.2010, the following issues were framed:
“(i) Whether Benu Puri is the LR of deceased Sita Kashyap in
terms of the registered Will dated 14.06.2004, registered on
15.06.2004 and if so, its effect?
(ii) Relief”.
2. Subsequently, vide order dated 02.06.2012, the issues were
recast as under:
th
“(i) Whether the Will dated 14 June, 2004 was validy
executed by Late Smt. Sita Kashyap? OPP.
(ii) Relief”.
3. The suit was initially filed by the two sisters namely Sita
Kashyap and Leela Puri against their brother Harbans Kashyap and the
LRs of their deceased brother Jagdish Chander Kashyap. The
preliminary decree of partition of property No. 5A, Guru Gobind Singh
Marg, New Rohtak Road, Karol Bagh, New Delhi was passed by this
court on 10.05.2007, holding each party having one-fourth undivided
share in this property. Subsequently, a final decree of partition was
passed on 19.11.2007, whereby the said property was directed to be
CS (OS) 1943/1998 Page 2 of 26
sold by public auction, and the parties entitled to bid therein to the
exclusion of their shares. After the final decree, Sita Kashyap died and
the applicant Benu Puri, who is the daughter of Leela Kashyap has
sought substitution in her place on the basis of a Will dated
14.06.2004. The said Will is disputed by the defendants. The
applicant Benu Puri has examined herself as PW1 and witness Vaneeta
Kapoor as PW2. Mr. Naveen Kumar Jaggi, who allegedly drafted the
said Will is also examined as PW3. The defendant No. 1 Harbans
Kashyap has examined himself as D1W1. No evidence has been led
by the defendants No. 2 and 3 (LRs of deceased brother Jagdish
Chander Kashyap).
4. I have heard learned senior counsel for the applicant and the
learned counsel for the defendants.
5. Since by execution of Will, a person intends to alter the rule of
succession or desires a particular form of inheritance, it is upon the
propounder of a Will to prove the execution and validity thereof to the
satisfaction of the judicial conscience. Thereafter, the onus would shift
to the defendant, who intends to assail the execution or the validity of
CS (OS) 1943/1998 Page 3 of 26
the Will. Creation of suspicious circumstances by the defendant
assailing the Will would cast further onus upon the propounder to
remove those suspicious circumstances. There cannot be any dispute
that registration of the Will itself is no assurance that the same is
genuine and validly executed. It is also settled proposition that each
and every circumstance would not be a suspicious circumstance. What
is alleged by the defendant, would have to be judged in facts and
circumstances of each case.
6. This court in the case of Pratap Singh & Another Vs. State &
Anr., 2010 VII AD (Delhi) 490 analyzed the law as regard to the
proving of a Will and observed thus:
“6. The principles to be applied by a Court for grant
of probate have been succinctly laid down by the
Hon’ble Supreme Court in Shashi Kumar
Banerjee & Others v. Subodh Kumar Banerjee
AIR 1964 SC 529 wherein their Lordships held:-
“4. The principles which govern the proving of
a will are well settled; (see H. Venkatachala
Iyengar v. B. N. Thimmajamma, AIR 1959 SC
443 and Rani Purnima Devi v. Khagendra
Narayan Dev, : (1962) 3 SCR 195 : (AIR 1962
SC 567). 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
CS (OS) 1943/1998 Page 4 of 26
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 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.”
7. It is not for the Court to consider whether the
disposition of the property was good or bad. The
duty of the Probate Court is to see whether prima
facie, the document constitutes a Will and if so
whether the propounder has been able to satisfy the
CS (OS) 1943/1998 Page 5 of 26
conscience of the Court that the Will was a validly
executed and genuine document, signed out of free
will, propounded in a sound disposition of mind,
after having understood the nature and effect
thereof. The Privy Council in Motibai Hormusjee
Kanga v. Jamsetjee Hormusjee Kanga, AIR 1924
PC 28 observed “a man may act foolishly and even
heartlessly; if he acts with full comprehension of
what he is doing the Court will not interfere with
the exercise of his volition.”
7. Similarly, this court in Vidya Sagar Soni Vs. State & Ors.,
decision dated 28.08.2006, Probate Case No. 39/1985 also had the
occasion to deal with similar matter as to what would constitute
suspicious circumstances and what form of affirmative proof would be
required to satisfy the judicial conscience that the document
propounded is the last legal and valid testament. The principles culled
out on these aspects are as under:
“ 5. Section 2(h) of the Indian Succession Act, 1925 defines
a will to mean the legal declaration of the intention of a
testator with respect to his property which he desires to
be carried into effect after his death.
6. The legal burden to prove due execution always lies
upon the person propounding a will. The propounder
must satisfy the judicial conscience of the court that the
instrument so propounded is the last will of a free and
capable testator.
CS (OS) 1943/1998 Page 6 of 26
7. A will is a solemn document, being written by a person
who is dead and who cannot be called in evidence to
testify about the due execution of the will. It is the living
who have to establish the will. It naturally throws a
heavy burden on the court to satisfy its judicial
conscience that the burden of proof of due execution is
fully discharged and every suspicious circumstance
explained.
8. No specific standard of proof can be enunciated which
must be applicable to all the cases. Every case depends
upon its own circumstances. Apart from other proof,
conduct of parties is very material and has considerable
bearing on evidence as to the genuineness of the will
which is propounded. Courts have to be vigilant and
zealous in examining evidence. Rules relating to proof of
wills are not rules of Laws but are rules of prudence.
Normally, a will is executed by a person where he
desirous, to either alter the normal rule of succession, or
where he desirous to settle his estate in a particular
manner amongst the legal heirs. Therefore, though to be
kept in mind, as to what is the nature of bequest too much
importance cannot be attached to the disproportionate
nature of a bequest. However, as observed in , Rabindra
Nath Mukherjee and Anr. v. Panchanan Banerjee (dead)
by LRs, disproportionate nature of a bequest is no doubt
a suspicious circumstance to be kept in mind, but, being a
mere suspicion, it is capable of being dispelled by other
evidence to show voluntary character of the document.
9. Therefore, the first rule to appreciate evidence is to
peruse the will. Normally, if there is rationality in a will,
a presumption arises about due execution. Of course,
being a presumption, it is rebuttable.
CS (OS) 1943/1998 Page 7 of 26
10. As observed in Smt. Kamla Devi v. Kishori Lal Labhu
Ram and Ors., the omission of a close relation from the
bounty of a testator raises a presumption in favor of
some undue influence. The probative force of such a
testament rises and falls in inverse ratio to its
unreasonableness.
11. The more unreasonable an instrument is, the less
probative value it carries. Where the terms of a will are
unusual and the evidence of testamentary capacity
doubtful, or due execution doubtful, the vigilance of the
Court will be roused and before pronouncing in favor of
the will, the court would microscopically examine the
evidence to be satisfied beyond all reasonable doubt that
the testator was fully conversant of the contents and
executed the will fully aware of what he was doing.
12. Expanding on the care and caution to be adopted by
courts, and presumptions to be raised, in the decision
reported as (1864) 3 Sw & Tr. 431 In The Goods of Geale,
it was opined that where a person is illiterate or semi
literate or the will is in a language not spoken or
understood by the executor, the court would require
evidence to affirmatively establish that the testator
understood and approved all the contents of the will.
13. This affirmative proof of the testator's knowledge and
approval must be strong enough to satisfy the court, in
the particular circumstances, that the will was duly
executed.
14. One form of affirmative proof is to establish that the
will was read over by, or to, the testator when he
executed it. If a testator merely cats his eye over the will,
CS (OS) 1943/1998 Page 8 of 26
this may not be sufficient. [see 1971 P.62 Re Moris). In the
report published as (1867) 1 P.D.359 Goodacr v. Smith, it
was held that another form of affirmative proof is to
establish that the testator gave instructions for his will
and that the will was drafted in accordance with those
instructions.
15. Courts have to evaluate evidence pertaining to the
circumstances under which the will was prepared. If a
will is prepared and executed under circumstances which
raise a well grounded suspicion that the executor did not
express his mind under the will, probate would not be
granted unless that suspicion is removed.
16. As held in the report published as (1838) 2 Moo P.C.
480 Barry v. Butlin, a classic instance of suspicious
circumstances is where the will was prepared by a
person who took a substantial benefit under it. Another
instance is as opined in the report published as (1890) 63
LT 465 Brown v. Fisher where a person taking benefit
under the will has an active role to play in the execution
of the will.
17. A word of caution. Circumstances can only raise a
suspicion if they are circumstances attending, or at least
relevant to the preparation and execution of the will
itself.
18. How the legal heirs acted and how and when a will
was propounded after the death of the executor are also
relevant to decide upon, where the will is genuine or a
created or a procured document.
CS (OS) 1943/1998 Page 9 of 26
19. Another point that has to be considered is about the
improbability in the manner in which the instrument is
scripted. As observed in the report published as
H.Venkatachala Iyengar V. B.N. Thimmajamma and
Ors., instance of suspicious circumstances would be
alleged signatures of the testator being shaky and
doubtful, condition of the testator's mind being feeble and
debilitated, bequest being unnatural, improbable or
unfair. Apart from these infirmities, propounder taking a
prominent part in the execution of the will, more so when
substantial benefits flow to them are all presumptive of
the will not being duly executed and or of suspicious
circumstances.
20. Suspicious circumstances are a presumption to hold
against the will. Greater is the suspicion more heavy
would be the onus to be discharged by he who propounds
the will.
21. Reference to satisfaction of judicial conscience is a
heritage inherited by court's since time immemorial for
the reason, as noted above, a will is a solemn declaration
as per which the living have to carry out the wishes of a
dead person”.
8. Section 68 of the Indian Evidence Act deals with the proof of
execution of a document required by law to be attested. This Section
lays down that if the deed sought to be proved is a document required
by law to be attested and if there be an attesting witness alive and
CS (OS) 1943/1998 Page 10 of 26
subject to process of the court and capable of giving evidence, he must
be called to prove execution. Execution consists in signing a document
written out, read over and understood and to go through the formalities
necessary for the validity of legal act. Section 63 of the Succession
Act gives the meaning of attestation as under:
“63. Execution of unprivileged Wills.—Every
testator, not being a solider employed in an expedition
or engaged in actual warfare, or an airman so
employed or engaged, or a mariner at sea, shall
execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the
will, or it shall be signed by some other person in his
presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so
placed that it shall appear that it was intended thereby
to give effect to the writing as will.
(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 the
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."
CS (OS) 1943/1998 Page 11 of 26
It is clear from the definition that the attesting witness must state that
each of the two witnesses has seen the executor sign or affix his mark
to the instrument or has seen some other persons sign the instrument in
the presence and by the direction of the executant. The witness should
further state that each of the attesting witnesses signed the instrument
in the presence of the executant. These are the ingredients of attestation
and they have to be proved by the witnesses. The word 'execution' in
Section 68 includes attestation as required by law.
9. While referring to the Will, the learned counsel for the defendant
urged that many facts mentioned therein were incorrect and so, it could
not be said to have been drafted at her instance by Mr. Naveen Kumar
Jaggi (PW3) or read over to her by him or the witnesses. It is also his
submission that Ms. Sita Kashyap was not in sound state of mind and
was also at the advanced stage of cataract and thus, could not
understand the contents of the Will or read the same. It is his
submission that the Will has been procured and manipulated by Ms.
Benu Puri and since Ms. Sita Kashyap was aged and dependent upon
her, she was under her constant undue influence. The learned counsel
CS (OS) 1943/1998 Page 12 of 26
submits that place of birth of Sita Kashyap mentioned in Will as
Sialkot was incorrect, as she was born at Kandansian, and not at
Sialkot. Further, the chronology of her brothers and sister as given in
the Will was incorrect in that her sister Leela was next to her and not to
her brother Harbans Kashyap as is mentioned in the Will. Further, not
only her age is wrongly mentioned as 76 years as against of 82, but the
ages of her brothers and sister as mentioned were also incorrect.
Learned counsel also submits that the suit filed by the defendants
against the plaintiffs in respect of shop No. 2378 was decreed in the
year 2001 to her knowledge, the bequeathing of the tenancy rights in
respect of the said shop in the Will, was apparently incorrect. Further,
Sita Kashyap also knew that the probate case (42/98) filed by her in
respect of the Will of her mother Kartar Devi was dismissed much
before 2004, and thus, the mention of this in the Will was also
incorrect. Further, he submits that Will mentions of bequeathing a plot
measuring 200 sq. yds., which she never owned or possessed. There
was no number, description or identity of this plot mentioned in the
Will. Learned counsel further submits that there was no bank account
CS (OS) 1943/1998 Page 13 of 26
or locker possessed by Ms. Kashyap and the mention thereof in the
Will was also incorrect.
10. By pointing out the contents in the Will as noted above, the
learned counsel submits that the Will was a fabricated and procured
document at the instance of Benu Puri, who had got prepared the same.
It is his submission that if the Will would have been drafted at the
instance of Ms. Kashyap or read over to her or even read by her, there
would not have been these incorrect facts which were personal to her.
Predicated on all this, it is submitted that these suspicious
circumstances go to the root of the execution of a free and voluntary
Will. Further, the learned counsel also submits that the Will has not
been properly attested as per law in that the two attesting witnesses
Rajesh Puri and Neeraj Puri have not been examined and none of the
witnesses examined has stated Ms. Kashyap signed the same in their
presence and they signed the Will in her presence and all signed the
same in the presence of each other.
11. As various suspicious circumstances have been urged by the
learned counsel for the defendant, the testimony of the propounder Ms.
CS (OS) 1943/1998 Page 14 of 26
Benu Puri and the attesting witness Vaneeta Kapoor as also of Mr.
Jaggi would have to be looked into from that perspective. Admittedly,
Ms. Kashyap had been living at Jaipur residence of her sister Leela
Puri where Benu Puri had also been residing along with them. It is
also admitted that Ms. Benu had been looking after Ms. Kashyap and
accompanying her whenever and wherever she desired. It is also
admitted that Ms. Kashyap had been having advanced cataract of eyes
since 2002 and was operated upon in July, 2002.
12. A look at the Will apparently substantiates the submissions of
the learned counsel for the defendant that it has various incorrect facts
and this was, in fact, not controverted by the learned senior counsel for
the applicant, who tried to justify the same by submitting that all these
facts were as per the information given by Ms. Kashyap.
13. Though Benu had stated that on not being permitted to enter the
suit premises by her brother, Ms. Kashyap stayed in the property of an
acquaintance at E-44, Jangpura on her visit to Delhi; Ms. Vaneeta
Kapoor had categorically stated and admitted that Benu was her close
friend and they had family relations and further stated that Ms.
CS (OS) 1943/1998 Page 15 of 26
Kashyap had desired that on her visit to Delhi, she would be staying
with her for few days. In answer to a question, Benu had stated that it
was after the last rites of Ms. Kashyap that she found the Will in her
almirah on being informed by one Mr. Jaggi. However, she admitted
in cross examination that Mr. Jaggi was their family friend and known
to her. When confronted about the age of Ms. Kashyap to be 82 years,
Ms. Benu could not deny the same, but stated that from her
appearance, she looked younger. It was put to her that she had got
stated the ages of all by guess in the Will. It was put to her that Ms.
Kashyap was bed-ridden and otherwise indisposed since 2002 and was
physically as well as mentally dependent, being not able to move
without the help and further that because of cataract of both the eyes,
was not able to read or write from 2002 till her death in 2004, and
further that the Will was got drafted or prepared at her instructions. It
was specifically put to her that because of old age and cataract, Ms.
Kashyap could not see clearly and understand, and that she had not
seen the contents of the Will or the nature of the document and she got
her signature by ruse / deception.
CS (OS) 1943/1998 Page 16 of 26
14. Further, at one place, she stated that after the last rites of Ms.
Kashyap, Mr. Jaggi informed her about the Will lying in her almirah;
whereas in her cross examination, she had stated about her counsel
having informed the court about the Will on the very next day of her
death.
15. Initially, Ms. Benu had stated that she had been teaching at
Jaipur since 1989 and visiting Delhi, but, then she stated staying at
Panchsheel Park, Delhi since September, 2010.
16. From the above, it would be seen that Ms. Kashyap had
advanced stage of cataract of both eyes at the time of execution of
Will. She had been living at Jaipur and had come to Delhi only for the
purpose of Will. She had no vehicle of her own and was dependent
upon Ms. Benu, who had been living with her at Jaipur at the residence
of her mother. May be, at the relevant time, Ms. Benu was living at
Delhi, but, from all this, it appears that Ms. Kashyap was brought to
Delhi by Ms. Benu. There does not appear to be any good reason for
Ms. Kashyap to stay with Vaneeta Kapoor when there was house of
Ms. Benu in Delhi. May be that Ms. Kashyap had stayed with Vaneeta
CS (OS) 1943/1998 Page 17 of 26
Kapoor, but, having regard to her physical condition, it could not be
believed that she was left alone or in the exclusive care of Vaneeta
Kapoor by Ms. Benu. This all suggests that she had been also actively
associated with Ms. Kashyap during all this period of her stay at Delhi.
17. This is further substantiated from the fact that if Ms. Benu had
not accompanied Ms. Kashyap to the office of Sub-Registrar for
registration of the Will, how could she state that Ms. Kashyap & Ms.
Vaneeta Kapoor as also Mr. Deepak Kohli signed on the back of the
Will before the Sub-Registrar.
18. On the other hand, Vaneeta Kapoor had categorically stated that
th
before leaving her house on 16 June, 2004 Ms. Kashyap informed her
that she had informed her lawyer Mr. Navin Kumar Jaggi that the
original Will would be found lying in her almirah and after her death,
Mr. Jaggi would inform Ms. Benu of the same. She candidly admitted
that she also informed Ms. Benu that there was a Will left by Ms.
Kashyap. Inconsistent stands as regard to knowing about the Will
simply suggests that Ms. Benu was well aware of the Will right from
the time of its execution.
CS (OS) 1943/1998 Page 18 of 26
19. According to Vaneeta Kapoor (PW2), she had taken Ms.
Kashyap to the residence of her nephew Neeraj Puri on 14.06.2004
where her other nephew Rajesh Puri also came for witnessing the Will.
She kept waiting in her car for transporting her to the office of Mr.
Jaggi. She stated that Ms. Kashyap brought the Will duly signed and
also requested her to attest as third witness. Since there was no table
for signing, she signed the Will in the office of Mr. Jaggi. Beside her,
one Mr. Deepak Kohli, a junior of Mr. Jaggi also signed the Will.
Now, from this part of the statement, it comes out to be that the Will
was already signed by Ms. Kashyap and Mr. Neeraj Puri and Rajesh
Puri when Ms. Kashyap came out of the residence of Neeraj, and that
Ms. Vaneeta Kapoor signed the same only in the office of Mr. Jaggi. It
is not understandable that when the Will had already been signed by
the two witnesses Neeraj and Rajesh, what was the necessity of
signatures of Vaneeta Kapoor and then of Deepak Kohli. In any case,
the Will had already been attested by Neeraj Puri and Rajesh Puri at
their residence before it was signed by Vaneeta Kapoor and Deepak
Kohli. None of those attesting witnesses Neeraj and Rajesh have been
examined. The signatures of Vaneeta Kapoor and Deepak Kohli on the
CS (OS) 1943/1998 Page 19 of 26
Will, at the most, could be said to be just for the sake of formality. It is
nowhere stated by Vaneeta Kapoor that the Will was read by or over to
Ms. Kashyap in her presence at any point of time. In fact, from the
advanced stage of cataract of both eyes, Ms. Kashyap was certainly
unable to read of her own. There was nothing on record to suggest that
at any point of time, the Will was ever read over to her by anyone.
Having regard to the large number of inaccurate facts as noted above,
this suspicion gets strengthened that Ms. Kashyap did not know the
contents of the Will and had simply signed the same.
20. From the testimony of Vaneeta Kapoor, it is evidenced that the
Will had already been signed by Ms. Kashyap on 14.06.2004 at the
residence of Rajesh Puri, and that she only signed the same in the
office of Mr. Jaggi. Ms. Vaneeta Kapoor also admitted that the Will
was not dictated by Ms. Kashyap or read over to her in her presence.
That being the admitted position, she was not the witness to the
signatures of any of the two attesting witnesses namely Rajesh and
Neeraj Puri, nor that of Ms. Kashyap. As is noted above, it is the
requirement of law of execution of Wills as enunciated in Section 63 of
CS (OS) 1943/1998 Page 20 of 26
the Succession Act that the attesting witness must state that each of the
two witnesses has seen the executor sign or affix his mark to the
instrument, and further, that each of the attesting witnesses signed the
instrument in the presence of the executant. These are the basic
ingredients of attestation which have not been established. The
suggestions given to Vaneeta Kapoor that she had signed the Will on
the asking of Benu Puri to help her, further gains importance in view of
the fact that the Will was neither signed by Ms. Kashyap in her
presence nor it was read over by her or in her presence. It is also
surprising, if to the knowledge of Ms. Vaneeta Kapoor, Ms. Kashyap
was about 84 years in the year 2004, then, how come that her age was
mentioned as 76 years in the Will, and also that when Benu Puri was
living in Delhi and had throughout been helping and looking after Ms.
Kashyap, the latter in advanced stage of cataract would chose to stay
with Vaneeta and not Benu Puri. Further, according to her, she had
th th
taken Ms. Kashyap to the office of Mr. Jaggi on 10 June and 14
June, 2004, whereas Mr. Jaggi had stated Ms. Kashyap having visited
th th th
his office on 10 , 13 and 14 June, 2004. According to Mr. Jaggi, she
th
had given the instructions on 10 June and had collected the Will on
CS (OS) 1943/1998 Page 21 of 26
th th
13 June and returned the same on 14 June, 2004. He had also stated
that on the first visit, Ms. Kashyap was alone, whereas, on subsequent
visit, she was accompanied with Vaneeta Kapoor. If Vaneeta Kapoor
th
had not taken her to Mr. Jaggi’s office on 13 June, 2004, then who
else might have taken, is another suspicious circumstance.
21. Mr. Jaggi stated having signed the Will only as he had drafted
the same. He is not a witness to the signatures of the Will by Ms.
Kashyap. According to him also, the Will was already signed by her
and two witnesses when she came to his office. It was put to him that
the Will was not drafted by him on the instructions of Ms. Kashyap,
but, at the instance of Ms. Benu Puri. He also stated that Ms. Kashyap
had claimed her age to be 83-84 years in 2004. If that was so, how he
wrote her age as 76 years in the Will, has not been explained. He also
could not explain the chronology of the siblings of Ms. Kashyap. If it
was so, then how he could write the incorrect chronology as also the
years of births of Ms. Kashyap and her sister and brothers. Regarding
other incorrect facts such as mention of bank account and locker, a
plot measuring 200 sq. yds., the answers given by Mr. Jaggi are that it
CS (OS) 1943/1998 Page 22 of 26
was on the information given by Ms. Kashyap. This all leads to
suggest that the Will was not drafted on the instructions of Ms.
Kashyap or she was unable to understand the contents thereof or the
Will was not read over to her, but, was got signed from her either
under some influence or on some pretext. If it was otherwise, she
would have corrected the Will if read over or if it was with her from
th th
13 to 14 June, 2004.
22. The Will is seen to have been signed by the witnesses Neeraj
th
Puri and Rajesh Puri on 14 June, whereas, it bears the date of
th
execution at two places as 15 June, 2004. It was stated by Mr. Jaggi
th th
that his clerk had filled up the dates as 15 June instead of 14 June
when submitting to the office of Sub-Registrar. According to him,
Deepak Kohli and Ms. Kashyap had informed him about this. This
was nothing but hearsay. Deepak Kohli has not been examined and
Vaneeta Kapoor did not say anything in this regard. This discrepancy
has remained unexplained. Further, from the glaring discrepancy as to
who informed Benu Puri and when about the Will, also further
suggests of not only her knowing about the Will, but, actively involved
CS (OS) 1943/1998 Page 23 of 26
and associated in its execution. Though, that factor alone may not
constitute a suspicious circumstance, but, given the facts as discussed
above, this would only inform that the Will seems to have been
prepared only at the instance of Ms. Benu Puri. As is noted above, she
had stated that Mr. Jaggi had informed her after the last rites of Ms.
Kashyap. Mr. Jaggi had also stated almost on similar lines, but,
Ms.Benu Puri, at another place, stated that her counsel had informed
the court immediately on the next day of death of Ms. Kashyap about
the execution of the Will. Ms. Vaneeta Kapoor had also stated that
she had informed Benu about the Will after its execution. It would not
appeal to any reason that Benu, who was at Delhi and had been looking
after Ms. Kashyap and also accompanying her outside, would not be
knowing about her visit to Delhi and staying with her close friend
Vaneeta Kapoor for several days and visiting the office of Mr. Jaggi
and executing a Will favouring her.
23. The suspicious circumstances which have been highlighted by
the learned counsel for the defendant have not been satisfactory
explained by the applicant and her witnesses, appealing to the
CS (OS) 1943/1998 Page 24 of 26
conscience of the court. While being conscious of the proposition of
law settled in catena of decisions, reference being made to Pentakota
Satyanarayana and Ors. Vs. Pentakota Seetharatnam and Ors.,
(2005) 8 SCC 67 that any and every circumstance is not a suspicious
circumstance, and that active participation of the beneficiary as also
exclusion of natural heirs, may themselves be not suspicious
circumstances, I am of the considered view that the Will is surrounded
by various suspicions as discussed above, and which have not been
satisfactorily removed by the applicant. Thus, the peculiar facts of the
case have led me to conclude that at the relevant time, Ms. Kashyap
was either not in a sound state of mind that she could understand the
nature and effect of the dis-position or did not consciously put her
signatures thereon of her own free will, or the Will was not prepared
on her instructions and/or was not read over to her and was got signed
by her under some extraneous factor.
24. From the above discussion, it comes out to be that the findings
on the issue need to be recorded against the applicant and that being so,
she is held to be not entitled to the relief claimed by her on the basis of
CS (OS) 1943/1998 Page 25 of 26
the said Will. Consequently, the applicant would be entitled to inherit
the share of Sita Kashyap in the suit property as per law of succession
along with other legal heirs including the defendants.
25. Application stands disposed of accordingly.
M.L. MEHTA, J.
MAY 15, 2013
akb
CS (OS) 1943/1998 Page 26 of 26