Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28.02.2025
Pronounced on:27.05.2025
+ TEST.CAS. 54/2014 & I.As. 15446/2021, 675/2022,
13488/2022
SANJAY KALRA ..... Petitioner
Through: Mrs.Kajal Chandra, Ms.Prerna
Chopra & Mr.Abhishek
Chhabra, Advs.
versus
STATE ..... Respondent
Through: Mr.Darpan Wadhwa, Sr. Adv.
with Ms.Ruby Singh Ahuja,
Ms.Megha, Ms.Neelakshi
Bhadauria & Ms.Aditi Mohan,
Advs. for LR No.1.
Ms.Neelakshi Bhadouria,
Mr.Puru Lehi & Ms.Divya
Gyan, Advs. for L-2.
Mr.Rajiv Nayar, Sr. Adv. with
Ms.Ruby Singh, Mr.Vasu
Singh, Ms.Megha Dugar,
Ms.Aditi Mohan &
Ms.Neelakshi Bhadouria, Advs.
for L-4.
Mr.Harish Malhotra, Sr. Adv.
with Mr.Rajiv Bahl and
Mr.Vikas Tomar, Advs. for L-5
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
J U D G M E N T
1. This petition has been filed by the petitioner, under Section 276
of the Indian Succession Act, 1925 (in short, „ISA‟), seeking the grant
of Probate of the Will dated 11.12.2004 ( Ex.PW 2/Z ) (hereinafter
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referred to as, „subject Will‟) of late Sh. Devendra Kumar Jain, son of
Sh. S.P. Jain (hereinafter referred to as, „Testator‟).
2. The petitioner claims that he has been appointed as one of the
Executors of the subject Will by the Testator.
3. The Testator unfortunately passed away on 18.03.2014, leaving
behind five legal heirs, namely, Smt. Usha Jain (wife)- Legal
Representative No. 1, Smt. Payal Kapoor (daughter)- Legal
Representative No. 2, Mr. Pankaj Jain (son)- Legal Representative No.
3, Ms. Pooja Jain (daughter)- Legal Representative No. 4, and Ms.
Priya Jain (daughter)- Legal Representative No. 5.
4. By the subject Will, the Testator has bequeathed his movable
and immovable properties in favour of his wife, Smt. Usha Jain.
5. The Will was challenged by Legal Representative No. 2-Ms.
Payal Kapoor, Legal Representative No. 3- Mr. Pankaj Jain, and Legal
Representative No. 5- Ms. Priya Jain, who filed their respective
objections in the present case. Ms. Pooja Jain, who is Legal
Representative No. 4, did not challenge the subject Will.
6. As far as Sh. Pankaj Jain is concerned, he initially filed his
objections to the subject Will, as also IA No. 9078/2015 seeking
certain directions. He later filed an application, being IA No.
14437/2016, stating that he had entered into a family settlement with
his mother - Smt. Usha Jain, which was earlier an oral settlement but
was later reduced to writing on 17.11.2016 in the form of a
Memorandum of Oral Family Settlement, and that in view thereof, he
does not press his objections to the present Probate Petition. The said
application, that is, IA No. 14437/2016, was allowed by this Court
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vide its Order dated 22.11.2016, and the objections filed by Sh. Pankaj
Jain as also the IA No. 9078/2015 were dismissed as withdrawn.
7. Similarly, Legal Representative No. 2 - Ms. Payal Kapoor, filed
an application, being IA No. 10297/2021, contending therein that she
had settled her disputes by way of a Memorandum of Oral Family
Settlement dated 09.08.2021, and sought permission to withdraw her
objections and all applications/replies to the present petition. The said
application was also allowed by this Court vide its Order dated
03.09.2021.
8. In view of the above, the only objections to the present petition
and the subject Will that survive for adjudication are those of Legal
Representative No. 5 - Ms. Priya Jain.
OBJECTIONS OF LEGAL REPRESENTATIVE NO. 5 - PRIYA
JAIN
9. In her objections, Legal Representative No. 5 – Ms.Priya Jain,
contended that the subject Will is a forged and fabricated document,
created to oust all the legal heirs of the Testator and to vest the entire
estate of the Testator solely in favour of his wife, Smt. Usha Jain, who
is completely under the control and influence of Legal Representative
No. 4 - Ms.Pooja Jain.
10. She states that the subject Will is also suspicious for the reason
that she is an unmarried daughter of the Testator, for whom he had
extreme love and affection, however, he has given no reason in the
subject Will for not providing anything for her from his estate. She
has stated that this also makes the Will unnatural in disposition.
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11. She has stated that there are also other indicators such as the
wrong spellings of the name of the Testator, the lack of continuity in
the subject Will from page to page, and the exclusion of adequate
provisions for the natural heirs, without any reasons, which raises
suspicion on the geniuses of the subject Will.
12. She has stated that the purported witness to the Will Mr.Mahesh
Gupta ( PW-2 ), was merely an employee in the company and it is very
unnatural for the Testator to have made him a witness to the subject
Will instead of his close friends, relatives, confidants, and the like.
She has further stated that the said witness has also received pecuniary
and other benefits for supporting the subject Will, including being
chosen for the topmost position in one of the companies, namely,
Eden Park Hotels Private Limited, whose net worth runs into several
hundred crores.
13. She has stated that the Testator was controlling a large number
of businesses and companies, and it is very unnatural that he would
not get the subject Will registered or prepare the same on a Non
Judicial Stamp paper.
14. She states that the Testator has not executed any Codicil to the
subject Will, even though ten years of execution of the subject Will
passed before his death and despite there being a tremendous
change/increase in the personal and professional estate of the Testator.
15. Most importantly, she has stated that after inspecting the
Original of the subject Will, it appears that the subject Will was typed
on a fresh whitepaper, which clearly does not appear to be of the year
2004, that is, ten years old, and the contents of the subject Will have
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been typed out much after the year 2004 on blank papers containing
the signatures of the Testator, that may have been obtained on
different occasions. As I find this objection to be important for the
determination of the present case, I may quote from her objections as
under:-
“ a. That the Objector had sought the
permission of this Hon‟ble Court to examine
the purported original Will, which had been
placed in a sealed cover, which was allowed
by this Hon‟ble Court vide order dated
26.06.2014. On such examination, it was
revealed that the purported Will is typed on a
fresh whitepaper which clearly does not
appear to be of the year 2004, i.e. ten years
old and as such, on the fact of it, appears to be
forged and fabricated. It is further submitted
that it appears that the contents of the said
purported Will have been typed out after
getting the signatures of Late Mr.D.K. Jain on
blank papers much after the year 2004,
apparently on different occasions. The
objector herein reserves her right to get the
Purported Will examined forensically or other
expert procedures to test the genuineness,
authenticity and veracity of the Purported
Will. The Objector herein also seeks the liberty
of this Hon‟ble Court to produce the report of
the handwriting and signature expert as and
when the same is available to the Objector
herein.”
16. She has stated that the two purported executors appointed in the
subject Will can act only in conjunction with each other and not in the
alternative or alone, and since Mr.Primal Oswal, the second executor,
has neither given a no objection to the petitioner nor has he been made
a party to the present petition, therefore, the present petition ought to
be rejected.
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17. She states that Ms.Usha Jain got her to sign a no objection to
the subject Will through a Memorandum of Understanding dated
11.06.2014 ( Mark ZB ), without her free will, consent, under undue
influence and coercion, and under the threat that her salary and other
perquisites would be withdrawn, in case, she does not sign the same,
within just two months of her father‟s passing. She states that the said
Agreement/MOU, therefore, cannot be relied upon by the Legal
Representative No. 1 as an acknowledgment of the Objector to the due
execution of the subject Will by the Testator.
ISSUES
18. Based on the pleadings of the parties, this Court, by its Order
dated 06.11.2015, framed the following issues:-
“1. Whether the Will dated 11.12.2004 is
the genuine and validly executed Will of Late
Shri D.K. Jain? OPP
2. Relief, if any.”
EVIDENCE BY THE PETITIONER
PW-1: Mr. Sanjay Kalra
19. In support of the petition, the petitioner examined himself as
PW-1. He filed his evidence by way of an affidavit dated 04.01.2016
( Ex.PW1/1 ), contending therein that he can identify the signatures of
the Testator on the subject Will, as he had seen him writing and
signing on various documents while he was working with the Testator.
He further stated that the Testator had obtained prior permission from
him, before appointing him as an Executor of the subject Will. He
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stated that Mr. Primal Oswal was also appointed as the other Executor
of the subject Will by the Testator. He stated that Mr.Primal Oswal
has sent him an affidavit with a letter dated 30.12.2015 ( Ex.PW1/C ),
stating that he could not join in the filing of the present Probate
Petition as he was preoccupied with his personal work commitments.
20. He further stated that the Original of the subject Will was left
behind by the Testator with his wife, Smt. Usha Jain, who took out the
subject Will from the office locker and handed it over to him, to
enable him to conduct his duties as an Executor. He stated that the
Will was handed over to him by Ms. Usha Jain in a brown envelope,
on which the words “personal Will”, along with the date 11.12.2004,
was written in the handwriting of the Testator, who had initialled it.
The said envelope was produced by him as ( Ex.PW1/D) . He stated
that he can identify the handwriting and initials of the Testator as he
had seen him signing and writing on various occasions.
21. The petitioner filed additional evidence by way of an affidavit
dated 03.03.2016 ( Ex.PW1/2 ), stating that he had been looking after
the financial affairs of the Testator, as well as all his children, for a
number of years in his personal capacity as a Chartered Accountant.
He further stated that the children of the Testator had given him Power
of Attorney(s) to represent them before the tax authorities. He filed
various documents in support of his statement that he was having
professional involvement with the Testator and his four children,
including the sole objector, Ms. Priya Jain.
22. The petitioner ( PW-1 ), in his cross-examination, admitted that
he had only a professional relationship with the Testator and did not
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enjoy any social relationship with him. He stated that he did not
remember the exact date on which the Testator sought his consent for
making him an Executor. He stated that his consent was taken over the
telephone. He stated that as he had seen the Testator sign a number of
documents in his presence, he could recognise his signatures, and
reiterated that the subject Will contained the signatures of the Testator.
23. He admitted that it was Ms.Usha Jain, who told him about the
subject Will, post the death of the Testator.
24. He further admitted that though he has filed the present petition
at his own instance, he did so after discussing the same with Ms.Usha
Jain, and the bills for the expenses of the present petition are being
paid by Ms.Usha Jain.
25. He admitted that Mr.Primal Oswal refused to give his consent
and no objection to the filing of the Probate Petition. He admitted that
later, the affidavit of Mr.Primal Oswal, dated 30.12.2015
( Ex.PW1/C ), was given to him by Ms.Usha Jain. He stated that the
said affidavit was not signed in his presence and he does not know the
signatures of Mr.Primal Oswal and nor is he aware on what terms and
conditions Ms.Usha Jain procured the said affidavit. He admited that
even the letter dated 30.12.2015, accompanying the said affidavit, was
not signed by Mr.Primal Oswal in his presence and the same had been
handed over to him by Ms.Usha Jain.
26. He was also cross-examined on the retainership fee received by
him from the companies for the years 2013-14 and 2014-15, which he
answered by stating that he did not remember the same. He was called
upon to produce his Income Tax Returns, which also he refused to
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produce, stating that it is his personal and confidential information,
which he would not like to disclose.
27. He admitted that the Testator had never provided him with a
copy of the subject Will and had also not informed him that in whose
custody the same was kept.
PW-2: Mr. Mahesh Gupta
28. The petitioner also examined the attesting witness to the subject
Will, Mr. Mahesh Gupta, as PW-2. In his evidence by way of an
affidavit dated 04.01.2016 ( Ex.PW2/Y ), Sh. Mahesh Gupta stated that
he is one of the attesting witnesses to the subject Will. He stated that
he knew the Testator since 1990 as he was employed with a Chartered
Accountant firm, namely, RS Bajaj & Co., which was providing
services to the Luxor Group of Companies from 1990 to 1992, during
which period he had closely worked with the Testator and had many
personal interactions with the Testator. He further stated that as the
Testator was impressed with his work, ethics, and behaviour, he asked
him to join the Luxor Group of Companies. He stated that he joined
the Luxor Group in 1996 as Senior Manager (Finance and Accounts)
and since then he worked closely with the Testator, handling his
personal accounts, taxation, finance, investments, and corporate affairs
of the Testator, and his family members.
29. He further stated that in the evening of 10.12.2004, the Testator
had asked him to be present in the office on 11.12.2004, which was a
holiday, being the second Saturday of the month, to discuss an
important matter. He stated that on 11.12.2004, when he reached the
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office, after some time, Sh. V.K. Jain, the other attesting witness of
the subject Will, also came to the office. The Testator called him in his
cabin situated on the first floor of the Luxor Office at 229, Okhla
Industrial Estate Phase-III, New Delhi-110020. He and Sh. V.K. Jain
entered the cabin of the Testator together. He stated that the Testator
told them that he had got a Will prepared in respect of his estate and
requested them to bear witness to the execution of the same. He stated
that the Testator placed before them a pre-typed document and
described the same as his Will. The Testator thereafter signed on each
and every page of the subject Will, which ran into eight pages, and
signed and wrote the date 11.12.2004, along with his signatures, on
the last page of the Will in their presence. He stated that after the
Testator had signed on each and every page of the subject Will, he
signed the same as attesting witness no.1 on the last page of the
subject Will, in the presence of the Testator and Sh. V.K. Jain. He
stated that Sh. V.K. Jain signed the subject Will as an attesting witness
in his presence and in the presence of the Testator. He stated that he
can identify the signatures of the Testator and Sh. V.K. Jain as both of
them signed the subject Will in his presence.
30. In his cross-examination, PW-2 stated that he joined the Luxor
Group of Companies in May 1996 as a Senior Manager (Finance and
Accounts). He stated that he did not remember the amount of his
salary for 1996, or for 2004 or in 2014. He denied producing his
Income Tax records, claiming them to be confidential and personal.
31. He admitted that he had been reporting to Ms.Usha Jain and
Ms.Pooja Jain after the death of the Testator.
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32. He admitted that he had only a professional relationship with
the Testator during his lifetime, and had no social relationship with
him.
33. He also admitted that after the death of the Testator, he has been
nominated as a Director in place of the Testator in the Eden Park
Hotels Private Limited. He, however, added that the same is without
any monetary gain/benefit. He denied the suggestion that the Testator
was receiving emoluments and perks from Eden Park Hotels Private
Limited, which were later transferred and were being paid to Mr.Rajat
Sharma, another employee of the Luxor Group of Companies, who
had been appointed as a Director in the said Company. He further
stated that Ms.Priya Jain, though was offered salary and perks by the
said Company, the same were denied by the Jain Group as there was a
dispute between the Jain Group and the Gupta Group, which owned
50% shares each in the said Company.
34. He stated that on 11.12.2004, he was called to the office of the
Testator as there were certain finance, accounts, and taxation matters
to be discussed. He stated that he used to maintain the personal
accounts of the members of the Jain Family, including Ms.Payal
Kapoor and her husband. He stated that Sh. V.K. Jain was also present
at the time of the meeting. He stated that he had seen the subject Will
for the first time when the Testator showed the same to him on the
said date. He denied the suggestion that the subject Will was not
signed by the Testator on 11.12.2004, or any other date, or had been
prepared only after his death. He reiterated that all pages of the subject
Will were signed by the Testator in his presence. He also denied the
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suggestion that the signatures of the Testator were already existing on
blank papers and the text of the subject Will was typed later. He
denied the suggestion that in lieu of him agreeing to be a witness to
the subject Will, after the death of the Testator, he was given
extraordinary promotion or out of turn promotion and was also given a
premier position in the Eden Park Hotels Private Limited. He though
admitted that from 01.06.2017 he had been appointed as the Group
Chief Financial Officer. He denied the suggestion that he was assigned
the work of looking after the Real Estate Portfolio of the Luxor Group
of Companies only after 18.03.2014, and/or was entrusted with the
banking and treasury of the entire Luxor Group of Companies only
after the said date. He stated that he was looking after both these
issues even prior to 18.03.2014.
35. A suggestion was given to him that even the other witness to the
Will, Sh. V.K. Jain, was earlier a Director of only four Companies in
the Luxor Group of Companies, while later, had been made a Director
in fifteen Companies, to which, he replied that Sh. V.K. Jain was a
Director of many companies of the group even before 18.03.2014. The
names of some of the Companies were also suggested to him, stating
that Sh. V.K. Jain became a Director of these Companies after the
death of the Testator, however, the PW-2 stated that these were mainly
dormant companies and a few of them have already been struck off
from the Register of Companies.
36. He stated that the name of the Testator was spelt differently,
though, in the statutory records, the spelling was „Davinder Kumar
Jain‟.
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37. He admitted that in Form 20B, filed for Luxor International
Private Limited for the year 2012, there was a mistake wherein,
Ms.Pooja Jain was shown as 50% shareholder instead of the Testator.
He stated that this mistake was committed by the office of Rajiv
Khosla and Associates, who was the Company Secretary of the Group
back then, and the same was later rectified.
38. He admitted that he did not read the subject Will, though he was
broadly briefed about its contents by the Testator.
EVIDENCE BY THE OBJECTOR
RW-2:Ms.Priya Jain
39. Ms.Priya Jain examined herself as RW-2. In her evidence by
way of an affidavit ( Ex.RW-2/A ), she has stated that the Testator
never spelt his name as „Devendra Kumar Jain‟ and always used to
spell it as „Davinder Kumar Jain‟. Apart from denying the subject Will
and stating that it is surrounded by suspicious circumstances, she has
stated that vide Letter/Agreement dated 11.06.2014 ( Mark ZB ) read
with Agreement dated 15.03.2016 ( Mark Y ), Smt.Usha Jain had
agreed to give her Rs.2,30,000/- per month for her expenses, as were
given to her by the Testator, however, Smt.Usha Jain did not pay the
same to her despite several reminders. She admitted that these
Agreements bear her signatures as well as those of Smt.Usha Jain. I
quote from her statement as under:-
“My mother, Mrs.Usha Jain vide her
th
letter/agreement dated 11 June, 2014 read
with agreement dated 15.03.2016 had agreed
to give me Rs.2,30,000/- per month for my
expenses, as were been given to me by my
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father, but, she is not paying the same to me,
in spite of several reminders. Both the
agreements bear mine signatures as well as
Mrs.Usha Jain. Both be exhibited.”
40. She stated that the subject Will appears to have been typed and
written on new fresh white papers and on the last page of the subject
Will, printing is present on the signatures, thereby, showing that it is a
forged document.
41. In her extensive cross-examination, she stated that the
signatures on the subject Will are not those of the Testator.
42. As far as the Agreement dated 11.06.2014 ( Mark ZB ) is
concerned, in her cross-examination, she now states that the same was
got signed from her under undue influence by her mother, who stated
that she would look after her interest in the estate of the Testator. She
states that Smt. Usha Jain did not let her read the contents of the
documents. Similar was her answer to the Agreement dated
15.03.2016 ( Mark Y ). She further admitted that she had been given
various properties by her parents. She, in fact, went on to deny the
very documents she had relied upon in her evidence by way of
affidavit.
43. It is important to note here that the learned Joint Registrar
(Judicial), who was recording her cross-examination, on various
occasions, made an observation that the witness was appearing to give
evasive answers and was deliberately giving lengthy answers to delay
the proceedings.
SUBMISSIONS OF THE LEARNED SENIOR COUNSEL
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APPEARING FOR THE OBJECTOR/LEGAL
REPRESENTATIVE NO. 5 - MS. PRIYA JAIN
44. Mr.Harish Malhotra, the learned senior counsel appearing for
the sole Objector - Ms.Priya Jain, submits that the subject Will has not
been proved by the petitioner. He submits that though the Objector
had contended that the signatures of the Testator on the subject Will
had been forged by some expert, no steps were taken by the petitioner
or the beneficiaries to prove the signatures of the Testator on the
subject Will. He submits that, in fact, the signatures on the last page of
the subject Will appeared to be covered by the typed portion.
45. He submits that even otherwise, the subject Will is shrouded
with suspicious circumstances. He submits that there is an unnatural
bequest whereby, even the unmarried children have been ignored by
the Testator and the entire estate has been bequeathed by the Testator
to his wife, without giving any reasons for the same. In support of his
submissions, he places reliance on H. Venkatachala Iyengar v. B.N.
Thimmajamma & Ors. , AIR 1959 SC 443, Murthy and Ors. v. C.
Saradambal & Ors. , (2022) 3 SCC 209, and Jaswant Kaur v. Amrit
Kaur & Ors. , (1977) 1 SCC 369.
46. He submits that the Will is even otherwise shrouded with
suspicious circumstances with even the spellings of the name of the
Testator in the Will being incorrect. He submits that though the
Testator was running a business empire, he is not stated to have
consulted any lawyer and nor is the Will stated to have been drafted
by a lawyer, which is completely unnatural and casts a suspicion on
the subject Will. He submits that apart from the fact that the
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investments in shares of various public listed Companies have not
been mentioned in the Will, as far as the Company by the name of
Luxor Writing Instruments Private Limited is concerned, from the
annual returns of the said Company, it would now be evident that as
on 01.04.2004, the Testator was holding 14,81,250 shares. It is now
also evident that 1,18,500 shares had been transferred by Mrs.Usha
Jain to the Testator on 01.10.2004, thereby making his total
shareholding in the said Company as 15,99,750 shares. However, still,
the subject Will shows the Testator to be owning 14,81,250 shares as
on the date of the subject Will. He submits that this, itself, casts a
suspicion on the subject Will, as the Testator, who was a man of
business, would not commit such a mistake in such an important
document, as the Will. In support, he places reliance on the Judgment
of Supreme Court in Anil Kak v. Sharada Raje & Ors. , (2008) 7 SCC
695.
47. He submits that the Testator has not executed any Codicil to the
subject Will, even after ten years of execution of the subject Will,
despite there being a tremendous change/increase in personal and
professional estate of the Testator in this subsequent period, which
again, according to him, casts a doubt on the very execution of the
subject Will.
48. He submits that when the Legal Representative No.2 - Ms.Payal
Kapoor was objecting to the subject Will, she herself produced a
report dated 27.03.2016 of a handwriting expert, Mr.Deepak Jain, who
in his report opined that the signature of the Testator appearing on the
last page of the subject Will was already there when the contents were
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typed/added thereon. He submits that on the other hand, the petitioner
or the beneficiary of the subject Will, made no attempt to prove the
signatures of the Testator on the subject Will by producing any
handwriting expert. In support of his submissions, he places reliance
on the Judgments of Supreme Court in Kavita Kanwar v. Pamela
Mehta & Ors. , AIR 2020 SC 2614, Prakash Soni v. Deepak Kumar
& Anr. , (2017) 9 SCC 332, B. Venkatamuni v. C.J. Ayodhya Ram
Singh & Ors. , (2006) 13 SCC 449, Bharpur Singh & Ors. v.
Shamsher Singh , (2009) 3 SCC 687, and Niranjan Umeshchandra
Joshi v. Mrudula Jyoti Rao & Ors. , (2006) 13 SCC 433.
49. He submits that even the age(s) of the children have been
incorrectly recorded in the subject Will and this is not expected of a
man like the Testator, especially on an important document like a
Will.
50. He submits that the subject Will runs into eight pages, but does
not show continuity as the page numbering has not been done in the
subject Will, the typing is not in synchronisation, and even the last
paragraph of the Will is not numbered.
51. He submits that the appointment of the Executor and the choice
of the witnesses to the subject Will also casts a suspicion on the
subject Will. He submits that the Executor was a junior executive of
the Group of Companies managed by the Testator, and the witness, as
per his own showing, was only a Chartered Accountant. It is
inconceivable that the Testator would choose them as the Executor
and as a witness to the subject Will over his own family members or
the Senior Managerial Executives of his Group of Companies. He
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submits that the petitioner admits that he did not even know of the
subject Will till it was produced by Smt. Usha Jain. In fact, only Smt.
Usha Jain knew about the subject Will and no other family member
was informed of the same.
52. He submits that the other Executor, Mr.Primal Oswal, has not
even filed the present petition and, in his absence, and in terms of
Section 224 of the ISA, the present petition is not maintainable. He
submits that faced with the above, Smt. Usha Jain, through the
petitioner, propounded an affidavit dated 30.12.2015 ( Ex.PW1/C )
allegedly of Mr.Primal Oswal, stating that due to his pre-occupation,
he could not join in the filing of the present petition. However,
Mr.Primal Oswal was not even produced as a witness in the present
case and the affidavit also remained unproved. In support, he places
reliance on the Judgment of the Karnataka High Court in In the
matter of last will and Testament of Eunice Annette Johnson , AIR
1970 Mys 46, and of the Madras High Court in James Noel Anthony
Hobbs & Anr. , 1956 SCC OnLine Mad 65.
53. He submits that the petitioner and the witnesses, being PW-1
and PW-2, who have supported the subject Will, have both been
rewarded in various forms by Smt. Usha Jain, the sole beneficiary
under the subject Will, by not only giving them promotions and
appointments at key managerial positions in various Companies, but
also by appointing the petitioner as a Director of Eden Park Hotels
Private Limited, which is one of the prime assets of the family and in
which the Objector was the Director until she was removed from that
position. He submits that PW-1 and PW-2 were asked to produce their
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Income Tax Returns in order to prove that they were being given
financial benefits to support the forged subject Will, however, they
refused to produce the same as they were afraid that the above fact
would get substantiated.
54. He submits that even though the subject Will was claimed to
have been produced and given to the petitioner by the sole beneficiary
under the subject Will, that is, Smt. Usha Jain, she did not appear as a
witness in the present case, fearing that the forgery would get proved
from her cross-examination. In support, he drew my attention to
various parts of the cross-examination of PW-1 and PW-2.
55. He submits that the reliance of Smt. Usha Jain on the
Letter/Agreement dated 11.06.2014 ( Mark ZB ) or on the Affidavit-
cum-No Objection dated 11.06.2014 ( Mark ZC) , Special Power of
Attorney ( Mark ZD) , and/or the Relinquishment Deeds dated
12.05.2014 ( Mark ZE to Mark ZL) , executed by the Objector-
Ms.Priya Jain, can also not be accepted, inasmuch as Ms.Priya Jain
has clearly stated that the said Letter/Agreement and other documents,
were got executed from her by her mother under undue influence and
by telling her that unless she signs the same, she will not get any
financial assistance from the estate of the family. He submits that,
even otherwise, in the Agreement dated 15.03.2016 ( Mark Y ), it was
clearly mentioned that the same is without prejudice to the rights and
contentions of Ms.Priya Jain against the subject Will in the present
Probate Case.
56. He submits that for the above reasons, the present petition is
liable to be dismissed.
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SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
PETITIONER
57. Ms.Kajal Chandra, the learned counsel for the petitioner,
drawing reference of this Court to the answer to question no.4 put to
the sole Objector- Ms. Priya Jain in her cross-examination recorded on
06.10.2021, submits that the Objector has admitted that the Testator
was in sound disposing mind and was not suffering from any mental
ailments till his death on 18.03.2014. The referred question and
answer is reproduced hereinunder:-
“Q4. Is it correct that your late father was not
suffering from any mental illness and was of
sound disposing mind till his death i.e.
18.03.2014?
Ans. Yes. He had no mental illness but he was
suffering from other ailments.”
58. Referring to the objections filed to the present Probate Petition
by Ms. Priya Jain, specifically paragraph 6(B)(b), she submits that it
was the case of Ms. Priya Jain that though the signatures on the
subject Will are those of her late father, that is, the Testator, they may
have been obtained on different blank pages on different occasions.
She submits that it was only during her cross-examination, as an
afterthought, that too in a vague manner, Ms. Priya Jain sought to
dispute the signatures of the Testator on the subject Will. In this
regard, paragraph 6(B)(b) of the objections, and the answer to
question 23 given by Ms. Priya Jain in the course of her cross-
examination on 15.03.2022, are reproduced hereinunder:-
“6. PRELIMINARY OBJECTIONS
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xxxxx
B. SUSPICIOUS
CIRCUMSTANCES
xxxxx
b. It is further pertinent to note that the
purported Will which run into 8 pages does
not show continuity with the previous pages, in
as much as the last paragraph does not reflect
any paragraph number in sync with the
previous paragraphs. A perusal of the last
page of the purported Will, and that too
without any paragraph number, which
peculiarly starts from “I declare that.....”
clearly shows that the proceeding pages were
different and as such signature may have
been obtained on different pages at different
occasions.
xxxxx
Cross-Examination
Q23. Is it correct that the averments made in
paragraph B(i)(b) at Page 39 of
reply/objection dated 10.10.2014, you had
stated that Portion ‗A‘ to „A‟ – “A perusal of
the last page of the purported Will, and that
too without any paragraph number, which
peculiarly starts from “I declare that .....”
clearly shows that the proceedings pages were
different and as such signature may have been
obtained on different pages at different
occasions”. What do you have to say?
Ans. Yes, it is mentioned. Vol. It is mentioned
that the signatures on all different pages are
false. These are not my father‘s signatures on
all pages as I was very very close to my father
had seen him signing all my life .”
( Emphasis Supplied )
59. She further submits that the petitioner and the Legal
Representatives Nos.1 to 4, have been requesting for the subject Will
to be sent to the Central Forensic Science Laboratory (in short,
„CFSL‟), however, it is the Objector- Ms. Priya Jain, who refused to
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be bound by the report of the CFSL, thereby compelling the Court to
observe in its Order dated 19.12.2019, that no useful purpose would
be served by sending the subject Will to the CFSL for an examination
and to get a report on the signatures of the Testator.
60. The learned counsel for the petitioner has also drawn my
attention to the cross-examination of Mr. Mahesh Gupta ( PW-2 )
conducted on behalf of the sole Objector- Ms. Priya Jain. She submits
that the questions/suggestions put to the witness would suggest that
the Objector admits that the subject Will has been signed by the
Testator and bears his signatures. In this regard, the relevant portion of
the cross-examination is reproduced hereinunder:-
“Q.89 I put it to you that since the purported
signatures of Mr. D.K. Jain were already
existing on the blank papers and the text of the
Will Ex.PW-2/Z was typed later that is the
reason that line at point B to B-1 on page 8 of
the said will Ex.PW-2/Z is above the
signatures and the date at mark A-8. What do
you have to say
A. It is incorrect.”
61. The learned counsel for the petitioner submits that though the
Objector also sought to raise a contention that the subject Will is
suspicious as there is no reason as to why the petitioner would be
appointed as an Executor thereof, Ms.Priya Jain, in her cross-
examination admitted that the petitioner was looking after the
financial dealings of the Testator and even she had signed various
documents authorizing the petitioner to represent her interest before
the Income Tax Department. She submits that as the petitioner was
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close to the Testator and was his confidant, therefore, the petitioner
had been appointed as an Executor of the Will by the Testator.
62. She submits that though Mr. Primal Oswal was also appointed
as an Executor of the Will, due to his preoccupation, he did not join in
as a petitioner in the present petition. He, however, gave an Affidavit
dated 30.12.2015 ( Ex.PW1/C ) stating that he had no objection to the
petitioner filing the present petition.
63. She further submits that though the Objector tried to raise a
doubt by contending that Mr. Primal Oswal refused to join as a
petitioner in the present petition, as he did not wish to be a part of the
alleged fraud, she herself did not produce Mr. Primal Oswal as a
witness. She submits that the contention of the Objector, therefore, is
liable to be rejected.
64. She submits that the reliance of the Objector on Section 224 of
the ISA is unfounded, as even a single Executor can maintain the
Probate Petition. In support, she places reliance on the Judgment of
the Division Bench of this Court in H.P.S. Chawla v. Dr. N.P.S.
Chawla & Ors. , 2005 SCC OnLine Del 1006; the Judgment dated
24.08.2022 passed by the Madras High Court in T.O.S.NO. 24 of
2008 titled K.S. Varadharajan v. S.K. Venkatesan ; and the Judgment
of the Calcutta High Court in Pradip Sancheti v. Sri Sanjay Kumar
Modi , 2016 SCC OnLine Cal 5464.
65. The learned counsel for the petitioner further submits that the
Objector tried to raise a doubt on the genuineness of the subject Will
by citing the alleged difference in the spellings of the name of the
Testator in the subject Will. The Objector contended that the Testator
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used to spell his name as “Davinder” and would not have misspelt his
name as “Devendra” in the subject Will. She submits that apart from
the fact that this is a minor discrepancy, even otherwise, the Testator
used to be described with both the above spellings, as also as “D.K.
Jain”. She submits that the same is evident from various documents
(Ex. PW1/G to PW 1/Z) that have been filed by the petitioner along
with his additional evidence by way of an affidavit ( Ex.PW1/2 ). She
submits that even the Objector, in her objections, has also referred to
the Testator as “D.K. Jain”. She submits that to cover up, in her cross-
examination, the Objector states that the said reference was to the
“unofficial name” of the Testator.
66. She submits that from the testimony of PW-2, the due execution
of the subject Will by the Testator and its attestation thereof by the
witnesses, is duly proved. The alleged suspicious circumstances
contended by the Objector, have been answered. She submits that,
therefore, the present petition be allowed and Probate of the subject
Will be granted.
SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR
THE LEGAL REPRESENTATIVE NO. 1 - SMT. USHA JAIN
67. Mr. Darpan Wadhwa, the learned senior counsel appearing for
the Legal Representative No.1- Smt. Usha Jain, while adopting the
submissions made by the learned counsel for the petitioner, further
submits that though the Objector tried to raise an objection that the
subject Will gives an unnatural bequest only to the wife of the
Testator, there is nothing unnatural in the same. He submits that the
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children of the Testator were adults, in their late 20s/early 30s, and
have been given various properties by their parents, that is, the
Testator and Smt. Usha Jain. He submits that, therefore, there is
nothing unnatural in the Testator leaving all his properties to his wife.
In support, he places reliance on the Judgment of the Supreme Court
in Kavita Kanwar v. Pamela Mehta & Ors. , (2021) 11 SCC 209, and
the Judgment of the Division Bench of this Court in Khazan Singh v.
State , 1991 SCC OnLine Del 494.
68. He further submits that, in her evidence by way of an affidavit
( RW2/A ), the Objector also sought to contend that the subject Will
appears to have been made on fresh paper that does not appear to be
ten years old, and that the signature of the Testator on the last page
appears to be under the printed portion, thereby contending that the
subject Will is forged and fabricated. He submits that apart from the
fact that this would amount to an admission of the Objector that the
subject Will indeed bears the signatures of the Testator, in any case,
the plea is liable to be rejected on a mere perusal of the subject Will.
He submits that merely because it is ten years old, does not mean that
the paper would turn yellow, as is contended by the Objector. Further,
he submits, the signatures of the Testator on the last page, in fact,
appear at a natural place, where the Will ends, which also supports the
plea of the petitioner as also of the Legal Representative No.1 - Ms.
Usha Jain that the subject Will is genuine and natural. In support, he
places reliance on the Judgment of Supreme Court in Surendra Pal &
Ors. v. Dr.(Mrs) Saraswati Arora & Anr. , (1974) 2 SCC 600.
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69. As far as the signatures on the subject Will are concerned, he
draws my attention to the Orders dated 24.02.2016, 02.05.2018, and
19.12.2019, to submit that Smt. Usha Jain was even willing to have
the signatures on the subject Will tested through the CFSL, however,
it was the Objector, who later denied the same and stated that she
would not be bound by the opinion of the CFSL. Taking note of the
same, this Court stated that no useful purpose would then be served by
sending the subject Will to the CFSL for opining on the authenticity of
the signatures of the Testator on the subject Will.
70. He further submits that the Objector herself never produced any
expert witness in support of her submission that the signatures of the
Testator are forged or that they appear under the typed portion on the
last page. He submits that at every stage, she tried to set up a new case
as far as the signatures of the Testator on the subject Will are
concerned. In support, he places reliance on the Judgment of the
Supreme Court in Bharpur Singh (supra), and the Judgment of the
Division Bench of this Court in Ved Prakash v. Om Prakash
Deceased through Legal Heirs & Ors. , 2012 SCC OnLine Del 5479.
71. He submits that as far as the misspellings of the name of the
Testator in the subject Will are concerned, the Testator used to spell
his name differently, as is evident from various documents that have
been filed by the petitioner along with his additional evidence by way
of affidavit ( Ex.PW1/2 ). He further submits that the attesting witness
to the Will, Mr. Mahesh Gupta ( PW-2 ), in his testimony, has
mentioned that while working closely with the Testator, he has seen
the Testator spell his name in different ways.
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72. With respect to the discrepancy in the age of the legal
representatives in the subject Will, he submits that a mere deviation of
one or two years in the age of legal representatives in the Will, cannot
invalidate the subject Will, especially when the execution and
attestation of the subject Will is duly proved.
73. He further submits that the Objector herself, in her evidence by
way of an affidavit dated 23.03.2020 ( Ex.RW2/A ), referred to and
sought to exhibit Letter/Agreement dated 11.06.2014 ( Mark ZB ), and
the Agreement dated 15.03.2016 ( Mark Y ) executed between herself
and the Legal Representative No.1- Smt. Usha Jain, containing her
acknowledgement to the due execution and validity of the subject
Will. Later, in her cross-examination, however, she sought to deny the
said documents ( Mark ZB and Mark Y) by stating that Smt. Usha
Jain had not produced the originals of the same. He submits that the
originals of these documents were produced and the Objector was
confronted with the same, however, she denied the same by
contending that these documents were executed by her under undue
influence.
74. He submits that even the learned Joint Registrar (Judicial), who
recorded the evidence of the Objector, has repeatedly mentioned about
the demeanour of the Objector during her cross-examination, and also
her attempts to evade answering the questions put to her. He submits
that the denial of these Agreements by the Objector, therefore, was
mala fide and is liable to be rejected by this Court.
75. He submits that there are other documents as well, that is, the
Affidavit-cum-No Objection dated 11.06.2014 executed by the
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Objector ( Mark ZC), Special Power of Attorney dated 11.06.2014
signed between Smt. Usha Jain and the Objector ( Marked ZD ),
Relinquishment Deeds dated 12.05.2014 executed, inter alia , by the
Objector ( Mark ZE to Mark J ), admitting to the due execution and
validity of the subject Will of the Testator. He submits that, again, the
Objector denied her signatures on these documents with a mala fide
intent and only to wriggle out of her admissions contained in these
documents. He submits that later, on being confronted, the Objector
admitted her signatures on these documents, however, sought to raise
a new contention that the signatures were obtained by Smt. Usha Jain
by undue influence and without letting her read the said documents.
He submits that this was a new defence, which was never taken by the
Objector before, and is liable to be rejected.
76. He submits that as far as the appointment of PW-2, as a
Director of Eden Park Hotels Private Limited is concerned, the
Objector had herself consented to the same, as is evident from the
letter dated 19.07.2014 jointly addressed by her and Smt.Usha Jain to
Eden Park Hotels Private Limited ( Ex.RW-2/XR1C ). In fact, the
removal of the Objector from the said Company has been upheld by
this Court in the Judgment dated 12.04.2023 passed in CO.A(SB)
57/2015, titled Priya Jain v. Laguna Holdings Pvt. Ltd. & Ors. . The
SLP against the said judgment, being SLP (Civil) Diary No.
30733/2023, titled Priya Jain v. Laguna Holdings Pvt. Ltd. & Ors. ,
was also dismissed by the Supreme Court vide Order dated
25.08.2023.
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77. He submits that the plea of the Objector that the petitioner or
the witness to the Will, PW-2 Mr.Mahesh Gupta, got any financial
benefits from Smt. Usha Jain, also remained unsubstantiated, and the
Objector has made mere allegations against them without any proof.
In support, he places reliance on the Judgment of Supreme Court in
Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr. , (1982) 1
SCC 20.
78. On the averment of the Objector that the subject Will does not
cover the shares held by the Testator in Public Listed companies, he
submits that the residuary Clause, that is, Clause 7 of the subject Will,
takes care of all the remaining assets of the Testator. He further
submits that since the holding in the Public Companies keeps varying
based on the buying and selling of shares, it would be futile to
mention the same in the subject Will.
79. On the alleged discrepancy in the number of shares held by the
Testator in Luxor Writing Instruments Private Limited, he submits
that not only was this issue not put to the witnesses at the time of
recording of their evidence, but even otherwise, in terms of Section 76
of the ISA, the same cannot invalidate the Will. In support of his
submission, he places reliance on the Judgment of the Calcutta High
Court in Gunjari Das v. Subal Chandra Das & Ors., 2009 SCC
OnLine Cal 1289.
80. He submits that the mere fact that the Testator has not executed
any Codicil even after ten years of executing the subject Will, is of no
legal consequence.
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81. He further submits that since the registration of a Will is not
mandatory under law, no adverse inference on the genuineness of the
Will can be drawn merely on this ground. In support, he places
reliance on the Judgment of Supreme Court in H. Venkatachala
Iyengar (supra).
SUBMISSIONS OF THE LEARNED SENIOR COUNSEL
APPEARING FOR THE LEGAL REPRESENTATIVE NO. 4 -
MS. POOJA JAIN
82. Mr.Rajiv Nayar, the learned senior counsel appearing for
Mrs.Pooja Jain, while adopting the submissions of the learned counsel
for the petitioner, and the learned senior counsel for Legal
Representative No.1, further submits that the statutory compliances
under Section 63(c) of the ISA and Section 68 of the Indian Evidence
Act, 1872 (in short, „Evidence Act‟) have been duly proved through
the testimony of PW-2 - Mr. Mahesh Gupta.
83. He reiterates that the Objector had admitted to the validity and
genuineness of the subject Will in the Letter/Agreement dated
11.06.2014 ( Mark ZB ).
84. He submits that the allegation that the subject Will makes an
unnatural bequeath, is also liable to be rejected, inasmuch as, the
Objector has herself admitted that she not only received various
properties from the Testator and Smt. Usha Jain, as gifts, but, in fact,
has also gone ahead and sold them for huge consideration.
85. He reiterates that the Testator used to spell his name in different
ways in different documents, and merely because the subject Will
does not contain the spellings, which the Testator most popularly
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used, will not create a suspicion on the subject Will. He submits that
in terms of Section 76 of the ISA, even an error in the name of the
legatee is not a suspicious circumstance, and the same cannot
invalidate the subject Will. The same must apply even in the case of
misspelling of the name of the Testator. In support, he places reliance
on the Judgment of the Supreme Court in Mohd. Rahim Ali v. State of
Assam & Ors. , 2024 SCC OnLine SC 1695; and of the Rajasthan
High Court in Samela Ram v. Chandan Mal , 1966 SCC OnLine Raj
121.
86. As far as the objection on the maintainability of the petition,
having been filed by only one of the Executors, is concerned, he
submits that the subject Will states that it is only for given
circumstances that both the Executors must have a unanimous
decision. These are mentioned in Clauses 9 and 10 of the subject Will.
He submits that Section 224 of the ISA does not mandate that both the
Executors must jointly file the Probate Petition. In fact, Section 311 of
the ISA allows any one of the Executors to act for all. In support, he
places reliance on James Noel Anthony Hobbs (supra), Eunice
Annette Johnson (supra), Shirin Baman Faramarzi v. Zubin Boman
Faramarzi & Anr. , 2017 SCC OnLine Bom 1807, and Suresh
Chandra Dutta Banik , 2016 SCC OnLine Cal 8390, .
87. He submits that Mr.Primal Oswal, has even given an Affidavit
dated 30.12.2015 ( Ex.PW1/C ) stating that for his own personal
reasons, he could not join in the filing of the petition. The Objector
did not produce him as a witness, in case she wanted to dispute his
position as an Executor or in support of her plea that he was not
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supporting the genuineness of the subject Will. He submits that the
petitioner had stated that he had addressed an e-mail dated 18.05.2015
to Mr.Primal Oswal, asking him to join in the filing of the present
petition, however, he did not receive any response from him.
Mr.Primal Oswal, however, did not dispute the genuineness of the
subject Will at any point of time. He submits that, therefore, this
petition should be allowed and Probate of the subject Will of the
Testator should be granted.
ANALYSIS AND FINDINGS
88. I have considered the submissions made by the learned counsels
for the parties.
89. Section 63 of the ISA provides the set of rules in terms of which
a Will shall be executed. The said Section reads as under:
“ Section 63. Execution of unprivileged wills .
Every testator, not being a soldier 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 a 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
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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.”
90. Section 68 of the Evidence Act provides as to how an attested
document is to be proved. The said Section reads as under:
“ 68. Proof of execution of document required
by law to be attested.–– If a document is
required by law to be attested, it shall not be
used as evidence until one attesting witness at
least has been called for the purpose of
proving its execution, if there be an attesting
witness alive, and subject to the process of the
Court and capable of giving evidence:
Provided that it shall not be necessary to call
an attesting witness in proof of the execution
of any document, not being a will, which has
been registered in accordance with the
provisions of the Indian Registration Act, 1908
(16 of 1908), unless its execution by the person
by whom it purports to have been executed is
specifically denied.”
91. The Supreme Court in H. Venkatachala Iyengar (supra), while
interpreting the requirements of a valid Will under Section 63 of the
ISA, has clearly distinguished the nature of proof required for a Will
to be proved. I may quote from the said Judgment as under:
“ 18. What is the true legal position in the
matter of proof of wills? It is well-known that
the proof of wills presents a recurring topic for
decision in courts and there are a large
number of judicial pronouncements on the
subject. The party propounding a will or
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otherwise making a claim under a will is no
doubt seeking to prove a document and, in
deciding how it is to be proved, we must
inevitably refer to the statutory provisions
which govern the proof of documents. Sections
67 and 68 of the Evidence Act are relevant for
this purpose. Under Section 67, if a document
is alleged to be signed by any person, the
signature of the said person must be proved to
be in his handwriting, and for proving such a
handwriting under Sections 45 and 47 of the
Act the opinions of experts and of persons
acquainted with the handwriting of the person
concerned are made relevant. Section 68 deals
with the proof of the execution of the document
required by law to be attested; and it provides
that such a document shall not be used as
evidence until one attesting witness at least
has been called for the purpose of proving its
execution. These provisions prescribe the
requirements and the nature of proof which
must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections
59 and 63 of the Indian Succession Act are
also relevant. Section 59 provides that every
person of sound mind, not being a minor, may
dispose of his property by will and the three
illustrations to this section indicate what is
meant by the expression “a person of sound
mind” in the context. Section 63 requires that
the testator shall sign or affix his mark to the
will or it shall be signed by some other person
in his presence and by his direction and that
the signature or mark shall be so made that it
shall appear that it was intended thereby to
give effect to the writing as a will. This section
also requires that the will shall be attested by
two or more witnesses as prescribed. Thus the
question as to whether the will set up by the
propounder is proved to be the last will of the
testator has to be decided in the light of these
provisions. Has the testator signed the will?
Did he understand the nature and effect of the
dispositions in the will? Did he put his
signature to the will knowing what it
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contained? Stated broadly it is the decision of
these questions which determines the nature of
the finding on the question of the proof of
wills. It would prima facie be true to say that
the will has to be proved like any other
document except as to the special
requirements of attestation prescribed by
Section 63 of the Indian Succession Act. As in
the case of proof of other documents so in the
case of proof of wills it would be idle to expect
proof with mathematical certainty. The test to
be applied would be the usual test of the
satisfaction of the prudent mind in such
matters.
19. However, there is one important feature
which distinguishes wills from other
documents. Unlike other documents the will
speaks from the death of the testator, and so,
when it is propounded or produced before a
court, the testator who has already departed
the world cannot say whether it is his will or
not; and this aspect naturally introduces an
element of solemnity in the decision of the
question as to whether the document
propounded is proved to be the last will and
testament of the departed testator. Even so, in
dealing with the proof of wills the court will
start on the same enquiry as in the case of the
proof of documents. The propounder would be
called upon to show by satisfactory evidence
that the will was signed by the testator, that
the testator at the relevant time was in a
sound and disposing state of mind, that he
understood the nature and effect of the
dispositions and put his signature to the
document of his own free will. Ordinarily
when the evidence adduced in support of the
will is disinterested, satisfactory and sufficient
to prove the sound and disposing state of the
testator's mind and his signature as required
by law, courts would be justified in making a
finding in favour of the propounder. In other
words, the onus on the propounder can be
taken to be discharged on proof of the
essential facts just indicated.
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20. There may, however, be cases in which
the execution of the will may be surrounded
by suspicious circumstances. The alleged
signature of the testator may be very shaky
and doubtful and evidence in support of the
propounder's case that the signature, in
question is the signature of the testator may
not remove the doubt created by the
appearance of the signature; the condition of
the testator's mind may appear to be very
feeble and debilitated; and evidence adduced
may not succeed in removing the legitimate
doubt as to the mental capacity of the testator;
the dispositions made in the will may appear
to be unnatural, improbable or unfair in the
light of relevant circumstances; or, the will
may otherwise indicate that the said
dispositions may not be the result of the
testator's free will and mind. In such cases the
court would naturally expect that all legitimate
suspicions should be completely removed
before the document is accepted as the last
will of the testator. The presence of such
suspicious circumstances naturally tends to
make the initial onus very heavy; and, unless
it is satisfactorily discharged, courts would be
reluctant to treat the document as the last will
of the testator. It is true that, if a caveat is
filed alleging the exercise of undue influence,
fraud or coercion in respect of the execution
of the will propounded, such pleas may have
to be proved by the caveators; but, even
without such pleas circumstances may raise a
doubt as to whether the testator was acting of
his own free will in executing the will, and in
such circumstances, it would be a part of the
initial onus to remove any such legitimate
doubts in the matter.
21. Apart from the suspicious circumstances to
which we have just referred, in some cases the
wills propounded disclose another infirmity.
Propounders themselves take a prominent part
in the execution of the wills which confer on
them substantial benefits. If it is shown that
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the propounder has taken a prominent part in
the execution of the will and has received
substantial benefit under it, that itself is
generally treated as a suspicious
circumstance attending the execution of the
will and the propounder is required to remove
the said suspicion by clear and satisfactory
evidence. It is in connection with wills that
present such suspicious circumstances that
decisions of English courts often mention the
test of the satisfaction of judicial conscience. It
may be that the reference to judicial
conscience in this connection is a heritage
from similar observations made by
ecclesiastical courts in England when they
exercised jurisdiction with reference to wills;
but any objection to the use of the word
“conscience” in this context would, in our
opinion, be purely technical and academic, if
not pedantic. The test merely emphasizes that,
in determining the question as to whether an
instrument produced before the court is the
last will of the testator, the court is deciding a
solemn question and it must be fully satisfied
that it had been validly executed by the
testator who is no longer alive.
22. It is obvious that for deciding material
questions of fact which arise in applications
for probate or in actions on wills, no hard and
fast or inflexible rules can be laid down for the
appreciation of the evidence. It may, however,
be stated generally that a propounder of the
will has to prove the due and valid execution
of the will and that if there are any suspicious
circumstances surrounding the execution of
the will the propounder must remove the said
suspicions from the mind of the court by
cogent and satisfactory evidence. It is hardly
necessary to add that the result of the
application of these two general and broad
principles would always depend upon the
facts and circumstances of each case and on
the nature and quality of the evidence
adduced by the parties. It is quite true that, as
observed by Lord Du Parcq in Harmes v.
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Hinkson [(1946) 50 CWN 895] “where a will
is charged with suspicion, the rules enjoin a
reasonable scepticism, not an obdurate
persistence in disbelief. They do not demand
from the Judge, even in circumstances of grave
suspicion, a resolute and impenetrable
incredulity. He is never required to close his
mind to the truth”. It would sound
platitudinous to say so, but it is nevertheless
true that in discovering truth even in such
cases the judicial mind must always be open
though vigilant, cautious and circumspect.”
(Emphasis Supplied)
92. In Pentakota Satyanarayana & Ors. v. Pentakota
Seetharatnam & Ors. , (2005) 8 SCC 67, the Supreme Court has
explained how the requirement of Section 68 of the Evidence Act is to
be met by the propounder of the Will, as under:
“ 22. ..... Section 68 of the Evidence Act, 1872
deals with proof of execution of 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
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.
*
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
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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.‖
( Emphasis Supplied )
93. More recently, in Shivakumar & Ors. v. Sharanabasappa &
Ors., (2021) 11 SCC 277, the Supreme Court, while summarising the
said law, has laid down the following propositions:
“ 12. For what has been noticed hereinabove,
the relevant principles governing the
adjudicatory process concerning proof of a
will could be broadly summarised as follows:
12.1. Ordinarily, a will has to be proved like
any other document; the test to be applied
being the usual test of the satisfaction of the
prudent mind. Alike the principles governing
the proof of other documents, in the case of
will too, the proof with mathematical accuracy
is not to be insisted upon.
12.2. Since as per Section 63 of the Succession
Act, a will is required to be attested, it cannot
be used as evidence until at least one attesting
witness has been called for the purpose of
proving its execution, if there be an attesting
witness alive and capable of giving evidence.
12.3. The unique feature of a will is that it
speaks from the death of the testator and,
therefore, the maker thereof is not available
for deposing about the circumstances in which
the same was executed. This introduces an
element of solemnity in the decision of the
question as to whether the document
propounded is the last will of the testator. The
initial onus, naturally, lies on the propounder
but the same can be taken to have been
primarily discharged on proof of the essential
facts which go into the making of a will.
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12.4. The case in which the execution of the
will is surrounded by suspicious circumstances
stands on a different footing. The presence of
suspicious circumstances makes the onus
heavier on the propounder and, therefore, in
cases where the circumstances attendant upon
the execution of the document give rise to
suspicion, the propounder must remove all
legitimate suspicions before the document can
be accepted as the last will of the testator.
12.5. If a person challenging the will alleges
fabrication or alleges fraud, undue influence,
coercion et cetera in regard to the execution of
the will, such pleas have to be proved by him,
but even in the absence of such pleas, the very
circumstances surrounding the execution of
the will may give rise to the doubt or as to
whether the will had indeed been executed by
the testator and/or as to whether the testator
was acting of his own free will. In such
eventuality, it is again a part of the initial onus
of the propounder to remove all reasonable
doubts in the matter.
12.6. A circumstance is “suspicious” when it
is not normal or is “not normally expected in a
normal situation or is not expected of a normal
person”. As put by this Court, the suspicious
features must be “real, germane and valid”
and not merely the “fantasy of the doubting
mind”.
12.7. As to whether any particular feature or a
set of features qualify as “suspicious” would
depend on the facts and circumstances of each
case. A shaky or doubtful signature; a feeble
or uncertain mind of the testator; an unfair
disposition of property; an unjust exclusion of
the legal heirs and particularly the
dependants; an active or leading part in
making of the will by the beneficiary
thereunder et cetera are some of the
circumstances which may give rise to
suspicion. The circumstances abovenoted are
only illustrative and by no means exhaustive
because there could be any circumstance or
set of circumstances which may give rise to
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legitimate suspicion about the execution of the
will. On the other hand, any of the
circumstances qualifying as being suspicious
could be legitimately explained by the
propounder. However, such suspicion or
suspicions cannot be removed by mere proof
of sound and disposing state of mind of the
testator and his signature coupled with the
proof of attestation.
12.8. The test of satisfaction of the judicial
conscience comes into operation when a
document propounded as the will of the
testator is surrounded by suspicious
circumstance(s). While applying such test, the
court would address itself to the solemn
questions as to whether the testator had signed
the will while being aware of its contents and
after understanding the nature and effect of
the dispositions in the will?
12.9. In the ultimate analysis, where the
execution of a will is shrouded in suspicion, it
is a matter essentially of the judicial
conscience of the court and the party which
sets up the will has to offer cogent and
convincing explanation of the suspicious
circumstances surrounding the will.”
94. From the above, it would be evident that it is for the petitioner
to prove that the subject Will has been executed by the Testator in
sound disposing mind, and has been duly executed in terms of Section
63 of the ISA. The petitioner is also to prove that the Will is not
shrouded by any suspicious circumstances. At the same time, as the
Objector contends that the signatures of the Testator have been forged
or that the signatures have been obtained on blank papers on which the
subject Will has been later typed, the onus of proving these allegations
shall be on the Objector.
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95. Keeping in view the above parameters, I must now deal with the
objections and contentions raised by the parties.
Execution and attestation of the subject Will
96. In the present case, as far as the due execution and attestation of
the Will is concerned, the petitioner ( PW-1 ) has not only examined
himself, wherein he states that being an employee of the Luxor Group,
he had seen the Testator sign on various documents and identified the
signatures of the Testator on the subject Will, but has also produced
the attesting witness- Mr. Mahesh Gupta ( PW-2 ) who deposed about
the due execution and attestation of the subject Will by the Testator,
alongwith the other attesting witness namely Shri V. K. Jain, by
stating as under in his evidence by way of affidavit:
“I have seen the original Will of Shri
Davinder Kumar Jain dated 11.12.2004
comprising of 8 sheets. I identify the
signature of Shri Davinder Kumar Jain at
the end of each page and also at the end of
the Will, The signature of Shri Davinder
Kumar Jain are at points A1 to A8.
I also signed the Will as attesting Witness
No. 1 and I identity my signature on the
last page of the Will at point B. I also
identify the signature of Shri V.K. Jain, the
second attesting witness to the Will and his
signature appear at point C. The Will is
exhibited as Ex. PW-2/Z.
97. The witness was cross-examined at length, including on the
execution of the subject Will. In his cross-examination, he stated as
under:
“Q.81 Should I take it that when the Will Ex.
PW-2/Z was shown to you it was already lying
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typed?
A. Yes.
Q.82 When the Will Ex. PW-2/Z was shown to
you, was it already signed by Mr. D.K. Jain?
A. No.
Q.83 When was this Will Ex. PW-2/Z signed by
Mr. D.K. Jain?
A. On 11.12.2004 during my meeting with Mr.
D.K. Jain along with Mr. V.K. Jain which
started at around 11.00 a.m.
Q.84 When did you leave the room of Mr. D.K.
Jain on 11.12.2004?
A. At around 11.45 a.m.
Q.85 I put it to you that this Will Ex. PW-2/Z
was not signed by Mr. D.K. Jain on
11.12.2004 or on any other date. What do you
have to say?
A. It is incorrect. Mr. D.K. Jain signed the Will
Ex. PW-2/Z on 11.12.2004.”
98. The learned senior counsel for the Objector/Legal
Representative No.5 has submitted that the testimony of these two
witnesses cannot be accepted inasmuch as they have been given
pecuniary benefits for deposing falsely to the genuineness of the
subject Will. In this regard, he has drawn my attention to the cross-
examination of these witnesses, to submit that they have been given
undue rise in their employment in return, with Mr. Mahesh Gupta
( PW-2 ) even been appointed as a Director in Eden Park Hotels Private
Limited, a cash-rich company of which earlier Legal Representative
No.5 was the Director. He submits that Mr. Mahesh Gupta ( PW-2 )
had earlier also been found filing false returns claiming transfer of
shares by the Testator to Ms. Pooja Jain, who is siding with the sole
beneficiary- Smt. Usha Jain, under the subject Will. He submits that in
spite of repeated asking, these witnesses have refused to produce their
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income tax records, which would show the pecuniary benefits being
transferred to them for deposing falsely.
99. I have considered the said submissions of the learned senior
counsel for the Legal Representative No.5, however, find no merit in
the same.
100. Apart from repeatedly contending that the petitioner and PW-2
have been given astronomical rise in the Group of Companies, no
cogent material for the same has been placed by the Objector/Legal
Representative No.5. Merely vague suggestions in this regard have
been given to these witnesses during their cross-examination, being
primarily drawn from the refusal of these witnesses to produce their
income tax records. I am of the opinion that no adverse inference can
be drawn against these witnesses only because they refused to produce
their income tax records, which are confidential in nature.
101. As far as the petitioner is concerned, the Objector, in her cross-
examination, states that her assertion that the petitioner has been given
undue benefits by Mrs. Usha Jain, is on basis of what she was told by
Mrs. Payal Kapoor. Therefore, these statements, at best, were hear-
say. I quote from her cross-examination as under:-
―Question No.70 : You have stated in your
objections as well as in your evidence that Mr.
Sanjay Kalra was given monetary benefits and
he was promoted. Can you tell us what
monetary benefits Mr. Sanjay Kala was given
and where the promotion was given to him?
(At this stage, the witness has gone through
objections and the affidavit filed by her)
Answer : I believe he got promotion in
various group companies. My eldest sister
Payal Kapoor, L.R No. 2 told me that Sanjay
Kalra told her that Pooja Jain Gupta gave him
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hefty amount for presenting the forged WILL
and thereafter Sanjay Kalra was given various
positions in the group companies of my Dad.
Question No.71 : I put it to you that you
are making a wrong allegation against Mr.
Sanjay Kalra and that Ms. Payal Kapoor has
never made such a statement. What do you
have to say?
Answer : I am giving the correct answer
as she in person told me this.
Question No.72 : I put it to you that Mr.
Sanjay Kalra had never been the employee of
any of Luxor Group of Companies and that he
had been the Chartered Accountant/Auditor of
the Luxor Group of Companies. What do you
have to say?
Answer : Ms. Payal Kapoor told me that
he has been an employee of the Luxor Group
of Companies, who has got out of turn benefits
and increments after my father‟s demise. I am
not aware whether he was Chartered
Accountant/Auditor of the Luxor Group of
Companies. ( Volunteered. As my father had
many Chartered Accountants in his group
companies).
Question No.73 : I put it to you that you
are making a wrong statement to the aforesaid
question as you were/are fully aware that Mr.
Sanjay Kalra was the Chartered Accountant
Auditor of the Luxor Group of Companies at
the time of filing of your evidence affidavit.
What do you have to say?
(At this stage, para no.12 of the affidavit of
evidence of the witness has been shown to her)
Answer : It is completely incorrect.
( volunteered. As my eldest sister Ms. Payal
Kapoor had mentioned Mr. Sanjay Kalra so is
mentioned in the affidavit)
Question No.74 : Have you in your
objections as well as in your evidence stated
that the aforesaid information was on the basis
of the information received by you from Ms.
Payal Kapoor?
Answer : It is correct that her name is not
mentioned in the affidavit and the objections.
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( Volunteered. But she has told me several
things personally on this forged WILL and its
witnesses and its executors)
Question No.75 : I put it to you that you
are making a wrong allegation against Mr.
Sanjay Kalra and defaming him. What do you
have to say?
Answer : No, I am not.”
102. As far as the submission of the Objector/Legal Representative
No.5 qua the filing of false returns by Mr. Mahesh Gupta ( PW-2 )
claiming transfer of shares by the Testator to Ms. Pooja Jain is
concerned, Mr. Mahesh Gupta ( PW-2 ), in his cross-examination has
duly clarified that the same was a clerical mistake committed not by
him, but by the Company Secretary and hence was duly rectified. I
may reproduce the relevant portion of his cross-examination as under:
“Q.298 Did you ever get any correspondence
from the ROC on your aforesaid email,
pointing out that the information on Form 20
B, filed vide service request dated 12.11.2012
was incorrect and not supported by a
resolution?
A. The mistake was not observed by ROC, it
was observed by our staff.
“Q.299 Since you have referred to being in
knowledge of mistake being observed by your
staff, is it correct that you were always aware
of the fact that the shareholding of Mr. D.K.
Jain in Luxor International Pvt. Ltd. has been
purposely shown as 0% from 50% and
consequently the shareholding of Pooja Jain
was shown as 50% from 0%. illegally without
passing of any resolution of the company and
without the consent of Mr. D. K. Jain?
A. As I have replied earlier, there was a
clerical mistake while filing this Form with
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ROC office by the office of Rajiv Khosla and
without any wrong intention. However, when
we got to know this mistake, we rectified it.
Q.300 Is it correct that when you say "when
we got to know this mistake, we rectified it",
does "we" include yourself also?
A. Yes”
103. Interestingly, it is not the case of the Objector/Legal
Representative No. 5 that on coming to know about the wrong filing
of the return, the Testator took any action against the PW2. In case the
said return had been filed by the PW-2 out of malice , surely the
Testator would have taken some action against him, however, there is
no evidence of the same produced by the Objector. On the other hand,
the Objector, in her cross-examination, tried to set up the case that the
Testator did not take action against the PW-2 as he sought his
apology. I may quote from the cross-examination, as under:-
“ Question No.220 : Is it correct that your
beloved father equally loved all other legal
heirs i.e. two daughters and one son, including
LR. No.4 ?
Answer : Well, he was closest to me. I look
like him and the others my eldest sister Payal
was married and Pankaj, hẹ was caring about
and Pooja (LR no.4) in year 2012 to 2013 had
broken his trust completely by getting his
shares owned by him in one of his companies
Luxor International by Chartered Accountant
Mr. Mahesh Gupta sending an email on her
instructions to the ROC, so, in that case, lie
was completely disheartened by her behavior:
Question No.221 : So when his heart was
disheartened, did your beloved father had
taken any action or reaction against LR No.4 ?
Answer : When such a situation happened,
somewhere around November-December,
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2012, my dad called me in a rush to the head
office 229, Okhla Industrial Estate, Phase-III,
Delhi-110020 and showed me in person MCA
records which clearly states that his shares
have been shifted from 50% equity in the
company to 0% through the email of Mr.
Mahesh Gupta and have been put while he is
living in the name of Pooja Jain, my sister, to
that he got very angry and called Pooja Jain
and Mahesh Gupta and gave them a big
thrashing of cheating on him and his shares
while he is alive, then, he said he will take
criminal action against Mahesh Gupta. After a
lot of convincing with my dear father Davinder
Kumar Jain Ji, it took me a while to make him
agree not to put any criminal complaint
against Mahesh Gupta as Pooja because she is
a part of our family will get entangled and to
make them apologize and get the transaction
reversed.
Question No.222 : In view of above, whether
services of Mr. Mahesh Gupta was terminated
or he continued to serve as Chartered
Account?
Answer : Mr. Mahesh Gupta really cried
in front of my father and said that whatever I
did with Pooja shall never repeat again, I have
served you for so many years, so, let me be in
service and I will serve with full honesty in
future. My father had a kind heart with all his
employees and people as general and I had
convinced him to take the criminal complaint
back from Mr. Mahesh Gupta, so, he agreed to
let him continue his services but his actions
will be recorded from thereon in the company
as my father expected pure honesty and he was
a very honest person.”
104. The above statement does not inspire any confidence at all. It is
not the case of the Objector that Mr. Mahesh Gupta (PW-2) was even
removed from the important positions that he held in the Company or
his authority was withdrawn by the Testator. The statement appears to
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be a completely concocted story. The Objector is merely trying to
discredit the testimony of the witnesses, based on allegations that do
not raise suspicion sufficient enough to discredit their testimony.
105. As far as the appointment of the Mr. Mahesh Gupta (PW-2) to
the Board of Eden Park Hotels Private Limited is concerned, the
learned counsels for the Legal Representatives nos. 1 to 4 have rightly
relied upon the letter dated 19.07.2014, jointly addressed by the
Objector and Smt.Usha Jain to Eden Park Hotels Private Limited
( Ex.RW-2/XR1C ), appointing Mr. Gupta as the Director of the said
Company. When cross-examined on this letter, the Objector gave
vague answers, as under:
“ Question No.196 : Is it correct that Mr.
Mahesh Gupta was appointed as the Vice
Chairman and Director on the Board of
Directors of Eden Park Hotels Pvt. Ltd. with
the consent of Mrs. Usha Jain and yourself?
Answer : No. Mrs. Usha Jain had filed an
application in the Company Law Board for
impleading Mr. Mahesh Gupta and myself.
Mrs. Usha Jain and her legal team took an
exparte order removing me as the Executive
Director of DKJ Group in Eden Park Hotels
Pvt. Ltd. On that, I moved another application
which was dismissed by the Company Law
Board and then I went in for appeal in the
Hon‟ble High Court of Delhi and that case is
still pending.
(At this stage, at the request of Ld.
Counsel for LR no.1, witness is shown the
original letter dated 19.07.2014)
Question No.197 : Does the above said
letter dated 19.07.2014 have your signature at
point „A‟?
Answer : Yes. This is my signature but
many documents were forced under undue
influence by my mother Usha Jain and Pooja
Jain saying that lots of official formalities
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have to be completed for Papa and as me
being his closest and confident and inheritor
of the entire estate, business, properties,
shares, please sign these 100 plus documents
quickly and I will take care of your share in
the estate of my husband Davinder Kumar
Jain. (Volunteered. They did not allow me to
read the contents of any of the papers, Usha
Jain (mother) and Pooja Jain.) The document
i.e. letter dated 19.07.2014 is exhibited as
Ex.RW-2/XR1C.
Question No.198 : I put it to you that on
19.07.2014, you had consented to the
appointment of Mr. Mahesh Gupta as Vice
Chairperson and Director on the Board of
Directors of Eden Park Hotels Pvt. Ltd. and
now you are deposing falsely. What do you
have to say?
Answer : This is completely wrong.
(At this stage, witness is shown question
no.189 of her cross-examination dated
13.07.2022.)
Question No.199 : Please see your volunteer
statement in response to question no.189. Can
you please specify as to whether these
statements which were made voluntarily by
you, form part of your objections to the
probate petition or the evidence by way of
affidavit?
Answer : Yes, I have mentioned it.”
106. In fact, the removal of the Objector from the said Company has
been upheld by this Court in the Judgment dated 12.04.2023 passed in
CO.A(SB) 57/2015, titled Priya Jain v. Laguna Holdings Pvt. Ltd. &
Ors. . The SLP against the said judgment, being SLP (Civil) Diary No.
30733/2023, titled Priya Jain v. Laguna Holdings Pvt. Ltd. & Ors. ,
was also dismissed by the Supreme Court vide Order dated
25.08.2023.
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107. The learned senior counsel for the Objector has also contended
that the petitioner could not have been a natural choice of the Testator
for being appointed as an executor of the Will, and similarly, PW-2
could not have been a natural choice of the Testator for standing as a
witness to an important document like the Will of the testator. He
submits that the natural choice for the same would have been the close
family relations or persons holding important positions in the Group
of Companies, rather than junior officers like the petitioner and the
PW-2.
108. I am, however, unable to accept the said submission of the
learned senior counsel for the Objector.
109. The petitioner has stated that he was looking after the financial
affairs of the Testator as well as of all his children for a number of
years, in his personal capacity as a Chartered Accountant. The
Testator had even given him Power of Attorney(s) to represent his
interest before the Tax Authorities. Though, the Objector vaguely tried
to deny the same, this stands proved from the documents Ex.
PW1/AA to Ex. PW1/EE, Ex. PW1/HH to Ex. PW1/JJ, and Ex.
PW1/OO. He stated that he had also represented the Objector in tax
matters on the basis of authority letters ( Ex PW1/OO) . In her cross-
examination, though initially the Objector tried to deny her knowing
the petitioner, but finally accepted that she knew who he was and that
he represented her before the tax authority. He was, therefore, not a
stranger to the Testator, but was his confidant.
110. It is not for this Court to speculate why the Testator would not
choose a family relation or an officer holding a higher rank than the
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petitioner to be the Executor of the subject Will. It could also be
because he wanted an outsider, who is aware of the accounts and the
running of the business, to act as an Executor, rather than a family
member who may have a personal interest in favour of one or the
other legal heir.
111. PW-2, Mr. Mahesh Gupta was the Senior Manager (Finance
and Accounts) in the Luxor Group of Companies in May 1996. He, in
fact, fairly admitted that he did not know that he was called by the
Testator on the date of the execution of the Will for standing as a
witness to the subject Will. He admitted that he was called by the
testator stating that some financial matters had to be discussed with
him, and it is in that meeting that the testator asked him to stand as a
witness to the subject Will. It again cannot be speculated as to why the
testator would have chosen the PW-2 to stand as a witness to an
important document like his Will. It could also be for the reason that
the Testator knew that PW-2 being only an employee of the Group of
Companies, would not have any personal interest on a later date to
deny the due execution of the subject Will, or to take sides with one of
the legal heirs.
112. In this regard, I may draw support from the Judgment of
Supreme Court in Indu Bala Bose (supra), where the Supreme Court,
while rejecting a similar objection of an objector to the Will, held that
normally a known reliable person is only called upon by the Testator
to stand as a witness to the Will, and not a stranger. The Supreme
Court further held that the testimony of an attesting witness cannot be
discredited merely for him being a partisan witness, having a
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professional relationship with the Testator. I may quote from the said
Judgment as under:
“14. ….With regard to circumstance (x) that
the scribe and the attesting witnesses were
either employees, or friend or relation of the
propounders' group, the answer is simple.
Nobody would normally invite a stranger or a
foe to be a scribe or a witness of a document
executed by or in his favour; normally a
known and reliable person, a friend or a
relation is called for the purpose. The same
argument applies to PW 3 who is said to be a
partisan witness for the reason that he was the
testator's advocate. But there is nothing to
show that he was not telling the truth in his
deposition…..”
113. The petitioner, therefore, has been able to prove the due
execution and attestation of the subject Will by the Testator.
Admission of the Objector/Legal Representative No.5 of the subject
Will
114. What is most important is that the Objector/Legal
Representative No.5 has executed a Letter/Agreement dated
11.06.2014 ( Mark ZB ), Affidavit-cum-No Objection dated
11.05.2014 ( Mark ZB ), and Relinquishment Deed(s) dated
12.05.2014 ( Mark ZE to Mark ZJ ), admitting to the due execution of
the subject Will of the Testator. The Letter/Agreement dated
11.06.2014 ( Mark ZB ) specifically records as under:
“ 8. You have acknowledged the validity of the
WILL of your father under which I am his
successor and you have no objection to the
implementation of the WILL. Pursuant to that,
you will sign, simultaneously with acceptance
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and acknowledgement of this letter, Affidavit
of No-Objection to the grant of the Probate
Petition titled as TEST Case No. 54/2014 in
the Delhi High Court, Further, you will sign as
required any other documents that I consider
necessary for implementing the succession.”
115. Along with the above Letter, the Objector/Legal Representative
No.5 also executed an Affidavit-cum-No Objection dated 11.06.2014
( Mark ZC ), wherein she stated as under:
“ 5. It is submitted that the petitioner was
having good relations with the Testator and
they have known each since long. It is
submitted that the petitioner is not a
beneficiary of the estate (s) of Late Devendra
Kumar Jain and if the probate will be granted
in favour of the petitioner according to the
terms and conditions stated in the WILL dated
11.12.2004 duly executed by the Testator, I
have no objection for the same and I hereby
undertake not to raise any claim or dispute
whatsoever with regard to the grant of the
probate in any court or Competent Authority.
6. It is stated that this Hon‟ble Court may be
pleased to grant probate to the duly executed
WILL dated 11.12.2004 by Late Devendra
Kumar Jain in favour of the Petitioner in the
interests of justice and equity.”
116. She also executed Relinquishment Deed(s) dated 12.05.2014
( Mark ZE to Mark ZJ ) which, in turn, recorded her admission to the
Will as under:
“And whereas Mr. Davinder Kumar Jain son
of Shri Satpal Jain, executed an un-registered
Will dated 11.12.2004, whereby he bequeathed
all the rest and residue of his estate which he
may die possessed of and entitled to, in favour
of his wife Smt. Usha Jain, absolutely.”
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117. Though, she later went on to vaguely deny the validity of the
said documents by contending that she was forced to sign the same
under undue influence and coercion, her evidence inspires no
confidence and her denial is clearly an after-thought. In fact, in her
own evidence by way of an affidavit ( Ex.RW2/A ), as far as the
Letter/Agreement dated 11.06.2014 ( Mark ZB ) and the Agreement
dated 15.03.2016 ( Mark Y ) executed by her are concerned, the
Objector/Legal Representative No.5 states as under:
“My mother, Mrs. Usha Jain vide her
th
letter/agreement dated 11 June, 2014 read
with agreement dated 15.03.2016 had agreed
to give me Rs. 2,30,000/- per month for my
expenses, as were been given to me by my
father, but, she is not paying the same to me,
in spite of several reminders. Both the
agreements bear mine signatures as well as
Mrs. Usha Jain. Both be exhibited.”
118. From the above, it is evident that the Objector/Legal
Representative No. 5 has admitted to the execution of the subject Will
by the Testator in various documents, however, has merely given
vague denial of such documents in her cross-examination. This Court
must draw an adverse inference against the Objector and not allow her
to approbate and reprobate on the binding nature of the documents on
which she herself was relying upon. As noted hereinabove, the learned
Joint Registrar (Judicial), while recording her evidence repeatedly
commented on her demeanour and even recorded how she tried to stall
the evidence and gave evasive answers.
119. The reliance of the learned senior counsel for the Objector on
the Agreement dated 15.03.2016 ( Mark Y) to wish away the effect of
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the above Agreements and documents, also cannot be accepted. The
said agreement has been signed by the Objector to transfer her shares
in the Eden Park Hotels Private Limited to Mrs. Usha Jain- Legal
Representative No. 1. The said agreement records that the same shall
not affect the pending dispute between the parties in the present
Probate Petition. The said agreement, however, does not state that the
earlier documents executed by the Objector, acknowledging the due
execution of the subject Will, stand cancelled or even challenged. In
fact, the Objector has not filed any proceedings challenging the
validity or due execution of the above mentioned
Agreements/documents.
120. For the above reasons, in my opinion, the Objector is even
otherwise estopped from challenging the due execution and validity of
the subject Will, and her objections against the grant of the Probate are
liable to be dismissed on this short ground itself.
Forensic examination of the Will
121. It is also important to note that earlier it was only Ms. Payal
Kapoor, the Legal Representative No. 2, who had disputed the
signatures of the Testator on the subject Will. She had also filed a
handwriting report dated 27.03.2016 of one Mr.Deepak Jain, who,
however, was never produced as a witness. As far as the Objector is
concerned, she never produced any Handwriting Expert.
122. On 12.01.2016, the Legal Representative No. 2- Ms. Payal
Kapoor, who till then was objecting to the grant of the probate, filed
an application, being I.A. No.612/2016, seeking permission to have
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the subject Will examined by a Handwriting Expert. The said
application was listed before this Court on 24.02.2016.
123. On the said date, the Legal Representatives Nos. 1 and 4, that
are, Smt. Usha Jain (the sole beneficiary) and Ms. Pooja Jain (who is
supporting the Legal Representative No.1 since the inception of these
proceedings), submitted that the Will should be sent to the CFSL as it
is desirable to obtain an independent report. This Court expressed its
agreement with the submission made by the Legal Representative
Nos. 1 and 4, and had observed that it would be appropriate to call for
a report from the CFSL with regard to the execution of the Will by the
Testator and the two witnesses, after the evidence of the attesting
witnesses and the petitioner/executor has been recorded. I quote from
the said order as under:
“Mr. Sethi who appears for LR Nos. 1 and 4
submits that the said Will may be sent to the
CFSL to call for a report as it is desirable to
obtain an independent report.
In my view, in the facts and circumstances of
the present case, it would be appropriate to
call for the report from the CFSL with regard
to the execution of the Will by the testator and
the two witnesses. However, the Will shall be
sent to the CFSL only after the evidence of the
two attesting witnesses and the
petitioner/executor has been recorded.”
124. Thereafter, the Legal Representative No. 1 filed an application,
being I.A.5955/2018, again requesting this Court that the subject Will
be sent to the CFSL for examination, in terms of the Order dated
24.02.2016. However, the Objector/Legal Representative No. 5,
Ms.Priya Jain refused to be bound by the report of the CFSL, because
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of which, this Court, by its Order dated 19.12.2019, observed that it
was not appropriate to call for the report from the CFSL at that stage,
however, if, after the evidence is recorded, any need is felt, a direction
can be issued for calling for the CFSL report. I quote from the said
order as under:
“1. The counsel for the legal representative
no. 5 Priya Jain states that Priya Jain is
present in person and is not agreeable to be
bound in terms of Section 20 of the Evidence
Act, 1872 with the report of the CFSL.
2. Once it is so, it is not appropriate to, at this
stage to call for the report of CFSL. If after the
evidence is recorded, any need is felt by the
Court for CFSL examination, the same will be
ordered.”
125. From the above, it would be evident that not only did the
Objector not lead any positive evidence in support of her denial of the
signatures of the Testator on the subject Will or on her plea that the
paper on which the subject Will is printed is not of the vintage the date
of the execution of the Will, but also refused the suggestion of the
Court that the subject Will be sent for a forensic examination by the
CFSL, however, on the condition that the parties shall be bound by the
report that is given by the CFSL.
126. This again persuades me to draw an adverse inference against
the Objector, and to find no merit in the objection as far as the proof
of the subject Will being signed by the Testator is concerned.
127. As far as the submission of the Testator that on the last page of
the subject Will, the signature of the Testator appears under the typed
portion is concerned, I have examined the original of the subject Will,
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and I do not find any merit in the said submission of the Objector.
From the naked eye examination, the signature clearly appears to be
over the typed portion.
128. On the objection of the Objector that there is no continuity in
the pages of the subject Will, and between the last paragraph of each
page and opening of the next page, I again find no merit in the same.
The subject Will is clearly in continuity and with paragraph
numbering, signed on each page by the Testator.
129. In view of the above, I hold that the petitioner has been able to
prove the due execution and the attestation of the subject Will by the
Testator and the two attesting witnesses.
Mental State of the Testator on the date of the execution of the
subject Will
130. There is no dispute raised by the Objector on the mental faculty
of the Testator on the date of the execution of the subject Will. In fact,
in answer to Question No. 4 in her cross-examination recorded on
06.10.2021, she admitted that the Testator had no mental illness right
till his unfortunate demise on 18.03.2014. I quote the question and
answer as under:-
“Q4. Is it correct that your late father was not
suffering from any mental illness and was of
sound disposing mind till his death i.e.
18.03.2014?
Ans. Yes. He had no mental illness but he
was suffering from other ailments.”
Suspicious circumstances surrounding the subject Will
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131. At the outset, I would remind myself of the prism through
which the Will is to be tested as far as the plea of it being shrouded
with suspicious circumstances is concerned. The Court is neither to
start on the premise of doubting the Will, nor of accepting the Will. It
must be remembered that the Testator is no longer there to offer
explanation on circumstances in which he/she executed the Will. It is
therefore, by applying judicial principles, that the Court is to
determine the merit in alleged suspicious circumstances pleaded
against the Will. I may herein quote from the judgment of the
Supreme Court in Shivakumar & Ors. (supra), as under
“ 12.6. A circumstance is “suspicious” when it
is not normal or is “not normally expected in a
normal situation or is not expected of a normal
person”. As put by this Court, the suspicious
features must be “real, germane and valid”
and not merely the “fantasy of the doubting
mind”.
xxxx
12.8. The test of satisfaction of the judicial
conscience comes into operation when a
document propounded as the will of the
testator is surrounded by suspicious
circumstance(s). While applying such test, the
court would address itself to the solemn
questions as to whether the testator had signed
the will while being aware of its contents and
after understanding the nature and effect of
the dispositions in the will?
12.9. In the ultimate analysis, where the
execution of a will is shrouded in suspicion, it
is a matter essentially of the judicial
conscience of the court and the party which
sets up the will has to offer cogent and
convincing explanation of the suspicious
circumstances surrounding the will.”
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Unnatural disposition by the Testator in the Will
132. The first suspicious circumstance alleged by the Objector/Legal
Representative No. 5 is that though there were unmarried children of
the Testator, the Testator not only excluded them from any bequeath,
but also did not give any reasons for such exclusion.
133. Though, at first blush, this submission looks attractive,
however, when it is examined in the context of the present case and
the parties, I find no merit in the same.
134. The children, at the time of the execution of the subject Will,
had attained the age of majority, and from the testimony of the
Objector/Legal Representative No. 5 herself, it is quite evident that the
Testator and even the sole beneficiary, that is, the Legal
Representative No. 1, had given various properties to the
Objector/Legal Representative No. 5 and other children for
maintaining their lifestyle in accordance with the standard of the
family.
135. The bequest under the subject Will is not to a stranger, but to
the wife of the Testator, who, after the death of the Testator, is the
matriarch and the head of the family. It is not unnatural for a person to
ensure that upon his death, his wife takes control of the assets created
by him and she is not left to the mercy of the children.
136. The Will also states that in case the Legal Representative No. 1
pre-deceases the Testator, the bequest would change, and different
properties would vest in different Legal Representatives. It is,
therefore, not as if the Testator wanted to exclude any Legal
Representative from the bequest. The intent appears to be that if the
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wife is alive, all properties must first vest with her. The Testator may
have also thought that if the assets are managed by the wife, as the
head of the family, it may also bring about unity amongst the children
and also maintain her respect. Therefore, I find the bequest to be
natural in the present case.
137. In Kavita Kanwar (supra), the Supreme Court, placing reliance
on the Constitution Bench judgment in Shashi Kumar Banerjeet &
Ors. v. Subodh Kumar Banerjee & Ors. , AIR 1964 SC 529, and Uma
Devi Nambiar & Ors. v. T.C.Sidhan , (2004) 2 SCC 321, held that
mere exclusion of the natural heirs or giving lesser share to them, by
itself, will not be considered as a suspicious circumstance. It was
observed that a Will is executed to alter the ordinary course of
succession, and by the very nature of things, it is bound to result in
either reducing/increasing or depriving the share of natural heir. It
was held that though it is true that a propounder of the Will has to
remove all suspicious circumstances, but the mere fact that the natural
heirs have either been excluded or a lesser share has been given to
them, would not in itself be a suspicious circumstance.
138. In Khazan Singh (supra), this Court held that the Will in favour
of the husband, or vice-versa, to the exclusion of others, stands on a
different footing as compared to a Will in favour of other heirs or
strangers. A bequest by a spouse in favour of the other is not unnatural
or unusual, and is often resorted to keep up amity in the family and
sometimes to ensure proper care, status, and respect to the living
spouse, after the demise of the other. I quote from the judgment as
under:
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“21. In so far as the exclusion of close
relatives and Class-I heirs of the testatrix is
concerned, a Will in favour of husband or
vice-versa to the exclusion of others, stands on
a different footing as compared to a Will in
favour of other heirs or strangers . The
concept of Will itself envisages preference to
one over the other. In our society it is not
unnatural or unusual for husband or wife to
bequeath his/her whole property to each
other to the exclusion of their progeny. It is
often resorted to keep up amity in the family
and sometimes to ensure proper care, status
and respect to the living spouse after the
demise of the other. Furthermore in the
instant case, although contesting respondent
has set up a case that the Will is not genuine,
he has not produced any evidence in support
thereof. In our opinion, therefore, the stated
circumstance is not suspicious. In our view,
facts in the instant case are clearly
distinguishable from the facts prevailing
in Kalyan Singh v. Chhoti (supra) and Ram
Pyari v. Bhagwant (supra) relied upon the
learned counsel for the respondent.”
( Emphasis Supplied )
139. Therefore, merely the fact that the Testator by the subject Will,
has bequeathed all his properties to his wife, is not a suspicious
circumstance that can persuade this Court to refuse the grant of the
probate.
Misspelling of the Name of the Testator and the age(s) of the Legal
Representatives in the subject Will
140. The Objector/Legal Representative No.5 has next contended
that the spelling of the name of the Testator on the Will is incorrect. It
is stated, and not very vehemently denied by the sole beneficiary, that
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the Testator used to spell his name as “Davinder”, whereas on the Will
his name is spelled as “Devendra”.
141. Mr.Malhotra, the learned senior counsel appearing for the
Objector/Legal Representative No. 5, submits that the above
circumstance raises a grave suspicion on the validity of the subject
Will as the Testator, who was a businessman, would not commit such
a mistake on an important document like his Will.
142. I do not find any merit in this submission. Mr.Mahesh Gupta
( PW-2 ) has deposed and also produced on record various documents
in which there are varying spellings of the name of the Testator. These
include important documents like Income Tax Returns and other
statutory filing. I am of the opinion that in case the Testator has got
the Will prepared from a third party, the third party may have
committed such a mistake, which may have been overlooked by the
Testator as the Will is supposed to have been executed and attested on
the day it was printed. Difference in the spellings of the name of the
Testator, in itself is not sufficient to raise a suspicion on the validity of
the subject Will, if its due execution and attestation is proved by
cogent evidence.
143. Mr.Rajiv Nayar and Mr.Darpan Wadhwa, the learned senior
counsels appearing for the Legal Representatives Nos. 4 and 1
respectively, have also placed reliance on Section 76 of the ISA,
which though is not strictly applicable to the objection raised by the
Objector, but would still throw some light on the fact that a mere error
in the name cannot prevent the legacy from taking effect. I quote
Section 76 of the Succession Act as under:
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“ 76. Misnomer or misdescription of object.—
(1) Where the words used in a will to
designate or describe a legatee or a class of
legatees sufficiently show what is meant, and
error in the name or description shall not
prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be
corrected by a description of him, and a
mistake in the description of a legatee may be
corrected by the name.”
144. The Supreme Court in Mohd. Rahim Ali (supra), though in a
different context, also took note of the fact that in India, it is not
uncommon for a person to write different spellings of his name
because of language, pronunciations, habits, or style.
145. Mr.Malhotra, has further highlighted that even the ages of the
children of the Testator have not been correctly mentioned in the
subject Will. The same, in my opinion, is also not a reason to draw a
suspicion on the subject Will. As would be evident from Section 76 of
the ISA, quoted hereinabove, such minor misdescriptions do not
negate the legacy.
Details of shares held by the Testator in Public Companies
146. Much emphasis has been placed by the Objector on the Testator
not giving complete details of his shareholdings in Public Listed
Companies in the subject Will, which the Objector claims to be of
substantial value.
147. Mr.Malhotra, the learned senior counsel for the Objector, has
very vehemently submitted that the Testator has given details of his
shares held in private companies, some of which were not even having
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a high net worth, however, the Testator has not mentioned his
investments in the Public Limited Companies in the subject Will,
which were valued at a huge amount. He submits that this raises a
suspicion on the subject Will.
148. I do not find any merit in this submission. It is not unusual for a
testator not to mention his/her investments in the Public Limited
Companies, as the same might keep changing from time to time, and
sometimes even on daily basis if the Testator is speculative in nature.
The Testator cannot be expected to list out all his investment in Public
Limited Companies in the Will, failing which it may be held that the
Will is suspicious.
149. At this point, I may also note that, in the present case, the
Testator has also kept a residuary clause in his Will, that is, Clause 7,
which covers all the rest and residue of his estate, which was not
covered in the Will. I may reproduce the said Clause as under:
7. All the rest and residue of my estate which I
may die possessed of and entitled to shall
belong to my wife Mrs. Usha Jain absolutely
and in case she predeceases me to my all four
children in equal shares.
150. Therefore, merely because such investments are not mentioned
in the Will, cannot lead to an adverse inference being drawn against
the validity and due execution of the Will or make it suspicious.
Discrepancy in the number of Shares held by Testator in M/s Luxor
Writing Instrument Pvt. Ltd.
151. Similarly, much emphasis has been placed by the Objector on
the alleged discrepancy in the number of shares held by the Testator in
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M/s Luxor Writing Instrument Pvt. Ltd., as on the date of the
execution of the subject Will. The learned senior counsel for the
Objector has very painfully tried to show that there was a major
discrepancy in the number of shares shown to be held by the Testator
in the above company in the subject Will, as against the number of the
shares actually held by him on the date of execution of the Will.
152. As submitted by the learned senior counsels for the Legal
Representatives Nos. 1 and 4, the same, in fact, are the shares which
were transferred by the sole beneficiary, that is, the Legal
Representative No. 1 to the Testator between the last financial report
of the company and the date of the execution of the subject Will. In
my opinion, the same cannot lead to any suspicion being drawn on the
subject Will. It is not uncommon for a person who drafted a Will to
take the figures from the last financial report of the privately held
companies. In any case, a minor discrepancy, such as the one
highlighted by the Objector, cannot be sufficient to disbelieve the
subject Will.
Non-registration of the subject Will
153. The learned senior counsel for the Objector further submits that
the non-registration of the subject Will casts a doubt on the
genuineness of the subject Will. I do not find any merit in the said
submission. In law, registration of a Will is not mandatory. In fact,
with the registration also, no added advantage in terms of the proof of
the Will is obtained. Therefore, only because the subject Will is not
registered, it will not cast a doubt on its validity, if otherwise it is
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proved in law. I may draw support from the judgment of the Supreme
Court in Ishwardeo Narain Singh v. Kamta Devi & Ors., (1953) 1
SCC 295.
Other suspicious circumstances alleged by the Objector
154. The Objector states that the scribe of the Will is not known; the
existence of the Will was not known till the death of the Testator; and
that it is strange that the Testator did not execute a Codicil, though he
remained alive for almost 10 years after the execution of the subject
Will.
155. None of the above can raise a suspicion on the validity of the
Will once its execution and attestation has been proved. The manner
in which the Will was executed has been described by Mr. Mahesh
Gupta ( PW-2 ) in detail. He was in no position to ask the Testator as
who had drafted the subject Will for him being only an employee of
the Testator.
156. It is not a requirement in law for the propounder of the Will to
also prove as to who has drafted the Will for the Testator.
157. As the bequest was only in favour of the Legal Representative
No.1, the wife of the Testator, it is natural that he would tell only her
about the execution of the subject Will and where he kept it.
Disclosing a Will to other legal heirs, while the Testator was alive,
may have resulted in a family dispute even during the lifetime of the
Testator himself. The other family members might also have exercised
undue pressure on him to change his Will, which he must have
thought to prevent by concealing it from the other legal heirs.
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158. For a Codicil to be executed, it was for the Objector to show the
reason why it may have been required. Once the Testator has
bequeathed all his properties to his wife, Legal Representative No.1,
including the residuary estate, a Codicil may have been required only
if Legal Representative No.1 had pre-deceased the Testator, or the
relationship of the Testator with any of his other legal heirs either
turns sour, or for some unfortunate happening or otherwise, the
Testator would have wished to specifically leave a property for a
specific legal heir, other than his own wife. None of the above
circumstances, or for that fact, any other circumstance, has been
shown by the Objector which would have required the Testator to
execute a Codicil. Merely because the Testator is happy with the
subject Will that was executed around 10 years prior to his death, does
not raise a suspicion on the validity of the subject Will. It must also be
remembered that it is not denied by the Objector that the Testator
remained in good health, both mentally and physically, till his death. It
is not the case of the Objector that the Testator has executed any other
Will in his lifetime, which may still have persuaded this Court to
presume that the Testator was of freckle mind and had the propensity
of changing his mind frequently.
159. Mr.Malhotra, the learned senior counsel for the Objector, stated
that the sole beneficiary, that is, the Legal Representative No. 1-
Smt.Usha Jain, has not entered into the witness box. This, he submits,
is for the reason that on being cross-examined, she may have proved
that the subject Will is not a genuine one. I find no merit in this
submission. Only on such hypothetical assertion, the subject Will
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cannot be disbelieved. There was no legal requirement for Smt. Usha
Jain to enter into the witness box. Even otherwise, being the head of
the family, she may have wanted to save herself an embarrassment of
being cross-examined by her own daughter, and may have saved her
from saying things which may not have been very palatable for her
daughter and might have spoiled their relationship.
Non-joinder of Mr.Primal Oswal as a petitioner
160. This now brings me to the most important objection of the
Objector, both on the maintainability of this petition as also as a
suspicious circumstance surrounding the subject Will. The same is the
non-joining of the second Executor, Mr.Primal Oswal, as a petitioner
in the present petition, and him not deposing as a witness in the
present petition.
161. It is not denied that Mr.Oswal is the brother-in-law of the
Testator, therefore, he is a close family relation of the Testator, of the
sole beneficiary under the Will, as also of the sole Objector now left to
the subject Will.
162. On the maintainability of the present petition, Mr.Malhotra has
submitted that in terms of Sections 224, 229, and 230 of the ISA, if
there are more than one Executors, they have to simultaneously act,
and the present petition being filed by only one of the Executors is,
therefore, not maintainable.
163. I would first quote the Clauses 2, 9 and 10 of the Will as under:
“ 2. I appoint (1) Mr. Primal Oswal my brother
in law and (2) Mr. Sanjay Kalra, my
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Chartered Accountant as the executors of this
will.
*
9. i) My executors shall pay in priority all my
liabilities including my death bed and funeral
expenses and testamentary expenses and
expenses incurred in the recovery and
administration of the estate. Such liabilities
and expenses shall preferably be paid out of
my bank balance if it is not sufficient our of the
amounts to be raised by selling assets before
distribution to aforesaid successors.
ii) However, wherever I have extended
"Personal Guarantee" to lenders/banks etc. for
extending loans to different companies or
business entities, the successor succeeding to
my shares in that company or business entity
shall substitute his or her "Personal
Guarantee" or pay off the lender from his or
her personal resources.
10. It is my earnest desire that all my
successor live in cordial relationship and in
harmony in ease of any clarification or dispute
in execution of my will my successors shall
abide by the unanimous decision of the
executors of this will.”
164. As there are two Executors appointed in the Subject Will,
Section 224 of the ISA needs to be considered alongwith Section 311
of the said Act. The same read as under:
“ 224. Grant of probate to several executors
simultaneously or at different times.—
When several executors are appointed,
probate may be granted to them all
simultaneously or at different times.
xxx
311. Powers of several executors or
administrators exercisable by one. —
When there are several executors or
administrators, the powers of all may, in the
absence of any direction to the contrary, be
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exercised by any one of them who has proved
the Will or taken out administration.”
165. A reading of the above provisions would show that a Probate
may be granted to all the executors simultaneously. However, if there
are more than one executor, the power of several executors, in the
absence of any direction to the contrary, can be exercised by any one
of them, who has proved the Will or take out administration. To put it
differently, in terms of Section 311 of the ISA, one of the two
executors can maintain this petition, however, this Court would grant
a Probate simultaneously to both the executors to act in accordance
with the Will, and the powers, subject to the contrary directions in the
order granting Probate or in the subject Will, may be exercised by the
Executor who has proved the Will or taken out administration.
166. The above reading of the provisions was explained by the
Madras High Court in James Noel Anthony Hobbs (supra), wherein
the Court held that if the Will names several executors and says
nothing more, then by the reading of Section 224 of the ISA, one or
more of them may apply for a Probate. It is only where the Will
specifically requires that all the executors should act jointly, that
Section 224 of the ISA cannot be invoked to enable some of them to
apply for a Probate alone.
167. The same view was also taken by a Division Bench of this
Court in H.P.S. Chawla (supra), holding as under:
“ 16. We find no force in the argument of
counsel for the appellant that the appellant
was a named executor in the Will and
therefore he too was entitled to probate.
Section 311 of the Indian Succession Act
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contemplates that when there are several
executors or administrators the power of all
may, in the absence of any direction to the
contrary be exercised by any one of them who
have proved the Will or taken out
administration . …..”
168. As far Clauses 9 and 10 of the Will are concerned, it is only in
discharge of duty under Clause 10 of the subject Will, that the
Executors of the Will have to act jointly. Therefore, if any clarification
to the Will is required or there is any dispute in execution of the terms
of the Will, that the Executors must act unanimously. Consequently,
one of the Executors may act in respect of the Will, including applying
for the Probate thereof, however, if any clarification is required to the
terms of the Will or in execution thereof, the two Executors must act
together.
169. In view of the above, it is held that the present petition, filed by
only one of the Executors, is, therefore, maintainable.
170. Sections 229 and 230 of the ISA are also important in this
regard, and are quoted herein below:
“ Section 229. Grant of administration where
executor has not renounced.-
When a person appointed an executor has not
renounced the executorship, letters of
administration shall not be granted to any
other person until a citation has been issued,
calling upon the executor to accept or
renounce his executorship:
Provided that, when one or more of several
executors have proved a will, the Court may,
on the death of the survivor of those who have
proved, grant letters of administration without
citing those who have not proved.
*
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Section 230. Form and effect of renunciation
of executorship. -
The renunciation may be made orally in the
presence of the Judge, or by a writing signed
by the person renouncing, and when made
shall preclude him from ever thereafter
applying for probate of the will appointing him
executor.”
171. A reading of the above provisions would show that a Letter of
Administration can be granted only to an executor. It can be granted to
someone else only where the executor renounces his executorship. It
can also be granted to one of the executors who has proved the Will.
In the present case, one of the executors has not renounced his
executorship. It has been held hereinabove that one of the executors
can act on behalf of the other, therefore, there is a compliance with
Section 229 of the ISA in the present case.
172. As far as Mr.Oswal‟s non-joining the petition or non-
appearance as a witness, thereby, raising a suspicion on the validity on
the Will is concerned, I again do not find any merits.
173. The petitioner claimed that Mr.Primal Oswal has given an
affidavit dated 31.12.2015 ( Ex.PW1/C ), stating that he has no
objection to the instant Probate proceedings. While simply on this
affidavit, it may be difficult to presume that Mr. Primal in fact,
supports the present Probate petition or that the present petition has
been filed with his consent, however, at the same time, even the
Objector took no efforts to produce Mr. Primal Oswal as a witness. In
law, there was no necessity on the petitioner or the Legal
Representative No.1 to produce Mr.Primal Oswal as a witness in the
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present proceeding. Therefore, no adverse inference can be drawn on
ground of non-production of Mr. Primal Oswal as a witness by the
petitioner.
174. It is not for this Court to guess the reason why Mr. Primal
Oswal may have stayed away from the proceedings. It could have
been because he has a close family relation with the parties, and did
not wish to be a part of the dispute between the family members.
Whatever may be the reason for Mr.Primal Oswal to stay away from
the present proceedings, his staying away will not lead to a suspicion
being created on the validity of the subject Will, especially when the
execution and attestation has been duly proved, and it is not alleged
that he could have thrown any light on either the execution or the
attestation of the subject Will.
175. Therefore, none of the above circumstances, either stand alone
or in conjunction with each other, are sufficient to raise a suspicion on
the subject Will.
CONCLUSION
176. From the above, it would be evident that the petitioner has not
only proved the due execution and attestation of the Will, and that the
Testator was in sound disposing mind at the time of the execution of
the subject Will, but also has proved that there were no suspicious
circumstances surrounding the subject Will. On the other hand, the
sole Objector/Legal Representative No. 5 has not been able to prove
any of the suspicious circumstances alleged by her.
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177. In view of the above findings, the Letter of Administration for
the Will dated 11.12.2004 of late Sh. Devendra Kumar Jain ( Ex.PW
2/Z ) is hereby granted to the petitioner, subject to payment of requisite
Court Fee. The petitioner shall furnish the Administration Bond with
one Surety to the satisfaction of the learned Registrar General of this
Court.
178. The petition is allowed in the above terms. The pending
applications are disposed of.
NAVIN CHAWLA, J
MAY 27, 2025 /rv/Arya/VS
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