Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 31.08.2015
Judgment delivered on: 26.11.2015
+ FAO 330/2006
MADHU GHANSHYAM HINGORANI ..... Appellant
Versus
STATE AND ORS. ..... Respondents
Advocates who appeared in this case:
For the Appellant : Mr. S.K. Mathur, Advocate
For the Respondents: Mr. Kanwal Chaudhary, Advocate for R-8
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER,J
BACKGROUND:
1. This is a statutory appeal filed against the judgment of the District
Judge dated 11.08.2006. The learned District Judge vide the impugned
judgment has dismissed the appellant’s petition under Section 276 of the
Indian Succession Act, 1925 (in short the Act) for grant of probate of Will
dated 14.03.1996 [in short the Will (Ex.PW4/A)] said to be executed by Late
Ms. Vidya Revachand Hingorani (in short the testatrix).
1.1 The testatrix expired on 11.09.1997. Upon the testatrix’s death, the
appellant instituted the petition under Section 276 of the Act, on 24.12.1999.
Apart from the State, which was impleaded as respondent no.1 to the said
petition, there were 9, other respondents, who were arrayed as parties to the
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probate action. While respondent no.2 to 8 are the siblings of the deceased
testatrix, respondent no.9 is the purchaser of the Property Bearing no.101, G
Block, Saket, New Delhi, admeasuring 250.8 sq. meters (in short the Saket
property), which is a subject matter of the aforementioned Will. Respondent
no. 10 is the daughter of respondent no.9.
1.2 The appellant is the wife of the elder brother of the deceased testatrix
and is a resident of New York, USA.
2. The learned District Judge has dismissed the appellant’s petition on
two grounds. First, that the appellant has not been able to discharge the
onus placed on her with regard to the execution of the Will. This,
conclusion, has been reached by the learned District Judge based on the
testimony of one, Mr. Shailender Bhardwaj (PW2), who was one of the
persons who had attested the Will. Second, the petitioner had not impleaded
the brother of the deceased testatrix. This conclusion has been reached in
paragraph 16 of the impugned judgment. Though, the name of the brother is
not given in the impugned judgment, one can safely assume, it could only
allude to the husband of the appellant, who was not formally impleaded as a
respondent along with other siblings in the probate action.
2.1 It is common ground that the Will dealt with only one asset of the
deceased testatrix, which is, the Saket property. Furthermore, it is also a
common ground between contesting parties, that is, the appellant and Mrs.
Kavita Hingorani (i.e. respondent no.8 in the present appeal), that the, Saket
property was sold to respondent no.9, one, Mrs. Santosh Singh, also known
as Mrs. Santosh Rani. Respondent no.10, as noticed above, is the daughter
of respondent no.9. Before me, respondent no.9 and 10, though represented
by counsel, did not address any arguments in the matter.
3. In this context, the following brief facts are required to be noticed :-
FAO 330/2006 Page 2 of 18
3.1 The deceased testatrix was a spinster. According to the appellant, the
testatrix executed the aforementioned Will on 14.03.1996 in presence of two
witnesses. These being: one, Ms. Dhaneshwari Devi, advocate and, as
indicated above, Mr. Shailender Bhardwaj (PW2).
3.2 The Will was registered in the office of the Sub-Registrar.
3.3 Even according to the appellant, the testatrix during her life time,
entered into an agreement to sell with regard to the Saket property and,
consequent thereto, received a sum of Rs.55 Lakhs from the buyer. In the
probate petition, the appellant further averred that the said sum of Rs.55
Lakhs was kept in a bank account with one, Mr. G.V. Hingorani; the
husband of respondent no.8.
3.4 The testatrix, as noticed above, died, on 11.09.1997, in Rishikesh, in
the State of U.P.
3.5 It is, in these circumstances, that the probate petition was filed on
24.12.1999, as indicated above. Citation was issued to general public,
which was published in the National Herald. Consequent thereto, objections
to the probate petition were filed by respondent no.8.
3.6 It appears that upon impleadment of respondent no.9 and 10, they
filed their objection in the form of replies to the petition.
3.7 In support of the probate petition, the appellant, besides herself, cited
three witnesses. The first witness was: Ms. Meera Abhichandani (PW1),
who was appellant’s power of attorney holder. This witness was not
produced for examination; therefore, no reliance can be placed on her
testimony. The second witness was, as indicated above, Mr. Shailender
Bhardwaj (PW2). He was one of those, who had attested the Will. The
appellant,who also stepped into the witness box, is referred to in the trial
court record as PW3. The fourth witness was, one, Mr. Sher Singh, a UDC
FAO 330/2006 Page 3 of 18
in the Sub-Registrar’s office. This witness was referred to as PW4.
3.8 On the other hand, respondent no.8 did not examine anyone but
herself. In the trial court record, she has been referred to as RW1.
3.9 Though, respondent no.9 and 10 had filed their objections, during the
course of the proceedings, they withdrew their replies/objections and thus,
indicated to the trial court that they had no objection to the grant of probate
in favour of the appellant. Consequently, the trial court was required to deal
with only the objections filed by respondent no.8.
4. The appellant in her testimony before the trial court, largely took the
stand which, she had taken in her probate petition. There was, however, an
elaboration of the details with regard to the amount received by the testatrix
against the agreement to sell executed by her qua the Saket property. The
particulars of the buyer, which were not adverted to in the probate petition
were referred to in the affidavit-of-evidence tendered by the appellant by
way of examination-in-chief. While the appellant persisted with her stand
that only a sum of Rs.55 Lakhs had been received by the testatrix and not a
sum of Rs.1.46 Crores, as claimed by respondent no.9, she also disclosed
that a suit for specific performance being: CS (OS) 2047/2000, had been
filed by respondent no.9 against her, in this court.
4.1 In her testimony, the appellant thus, categorically denied the claim of
respondent no.9 that she had paid a sum of Rs.1.46 Crores to the deceased
testatrix against a total consideration of Rs.1.50 Crores agreed to with
respect to the Saket property. As a matter of fact, respondent no.9 and 10, in
their reply, filed before the trial court, had taken the stand that apart from a
balance sum of Rs.4 Lakhs, which they are willing to pay, the remaining
consideration out of a total sum of Rs.1.46 Crores had been paid to the
deceased testatrix. Respondent no.9 and 10 have also taken the stand that
FAO 330/2006 Page 4 of 18
they are in possession of the Saket property; a fact which was not disputed
before me.
4.2 The appellant in her examination-in-chief also adverted to an affidavit
dated 15.10.1997 (Ex. PW4/3) said to have been executed by respondent
no.8 wherein, she is said to have deposed on oath that the Will in issue was a
genuine and valid, and had been executed by the deceased testatrix without
any coercion, and that, as per the said Will, the appellant had become the
absolute and exclusive owner of the Saket property.
4.3 In her cross-examination, the appellant disclosed that she became
aware of the testatrix’s wish to execute the Will when she was asked by her
to accompany her to the Sub-Registrar’s office for the purposes of getting
the Will registered. The appellant went on to state that both she and her
husband accompanied the testatrix to the Sub-Registrar’s office though, she
could not remember as to whether she had signed the Will, as a witness, or
any register in the office of the Sub-Registrar. The appellant also adverted
to the fact that she had carried the original Will, with her, after it had been
registered. The appellant further deposed that upon being informed about
the death of the testatrix by the husband of respondent no.8, she visited
India, on 18.09.1997.
4.4 In her cross-examination, the appellant accepted the fact that
negotiations with respect to sale of the Saket property ensued during the life
time of the testatrix, as also, the fact, that the Will in issue pertained only to
the Saket property. The appellant went on to allude to the fact that the Saket
property was sold with “our consent” (which I would presume included the
appellant’s husband, who was the elder brother of the deceased testatrix).
4.5 The appellant further accepted the fact that the deceased testatrix had
purchased an immovable property at Rishikesh by utilizing the funds
FAO 330/2006 Page 5 of 18
received as advance against the agreement to sell executed qua the Saket
property.
4.6 Furthermore, the appellant deposed that the deceased testatrix had
invested the remaining amount in a fixed deposit qua which Mr. G.V.
Hingorani i.e. the respondent no.8’s husband was made a nominee. The
appellant, however, denied the suggestion that the testatrix had changed her
mind after the execution of the Will and sold the property to respondent no.9
or that, her relationship with the testatrix had got strained after the execution
of the Will. The appellant also denied the suggestion that she had used
undue influence on the testatrix to have her execute the Will in her favour.
4.7 The appellant also denied the suggestion that respondent no.8 had
looked after the deceased testatrix during her illness and that, as a reward,
she had sold her property and given the proceeds to respondent no.8. The
appellant in fact, asserted that respondent no.8 had refused to take care of
the testatrix during her illness when, contacted over the telephone by her, for
the reason, that her own husband was suffering from a heart ailment.
4.8 The appellant, however, admitted that the Will was prepared by her
lawyer. The appellant, however, denied that the testatrix by making Mr.
G.V. Hingorani (i.e. respondent no.8’s husband) as a nominee of the funds
received against execution of the agreement to sell, intended to give those
funds during her life time, to them.
4.9 In so far as Mr. Shailender Bhardwaj (PW2) was concerned, his
testimony was recorded on two occasions i.e. 23.01.2004 and 31.03.2004.
On the first occasion, he deposed that the deceased testatrix had executed the
Will in his presence and in the presence of Ms. Dhaneshwari Devi, the
advocate of the appellant. PW2 identified the signatures and thumb
impression of the testatrix as well as those which were appended by him at
FAO 330/2006 Page 6 of 18
point X and the signature of Ms. Dhaneshwari Devi at point Y on the Will in
issue. PW2 also went on to state that the Will was registered on the day it
was executed i.e. 14.03.1996. PW2 also alluded to the fact that he had
signed and appended his thumb impression before the Sub-Registrar, and
that, the testatrix was in a sound disposing mind and had executed the Will,
voluntarily, without coercion.
5. PW2, however, on being recalled, to some extent, deviated from his
earlier testimony. Since much of the case turns on the testimony of PW2, I
intend to extract the relevant part verbatim as it appears on the record.
“..I am peon in the Akil Bhartiya Netra heen school. I personally
did not know Mrs. Vidya Rewachand Hingurani. I was
introduced to the testatrix through one Mrs. Dhaneshwari. Mrs.
Dhaneshwari Adv., lives at the back side where I reside. Vol.
She has now expired 4-5 months ago. The testatrix and Mrs.
Dhaneshwari Adv. requested me to subscribe to the said will as a
witness. On their request I signed as a witness on the said will.
One day prior to the registration of the will, I was asked by Mrs.
Dhaneshwari Adv. to accompany her for registration of the will
the next day. I did not sign on the will on the day when she
made the above mentioned request. I was introduced to the
testatrix on the same day when the will was regd. I and Smt.
Dhaneshwari Adv. went together to the Sub Registrar Office and
the testatrix came alone. I was given / shown the original will by
Smt. Vidya Hingurani, testatrix. I inquired from her as to
whether she had not brought any other witness, she answered
me in the negative and told me to sign as a witness . When she
shown me the will for the first time, it was already signed by her.
Smt. Dhaneshwari Adv. signed in my presence. Thereafter I
signed as a witness. Vol. Testatrix had signed in the office of
Sub Registrar. It is wrong to suggest that Mrs. Dhaneshwari
Adv. did not sign in my presence. It is wrong to suggest that
when the will first shown to me, it was bearing the signature of
Smt. Dhaneshwari Adv. as well. It is correct that Vidya Devi
Hingurani had signed in the office of Sub Registrar for the
purposes of registration. It is incorrect to suggest that I am
deposing falsely....
FAO 330/2006 Page 7 of 18
..I had seen the will. When I saw the will first time it was signed
by the testatrix. I do not remember whether it was dated or not. I
do not remember when date encircled A was put (only the part of
date shown to the witness). It is wrong to suggest that I am
deposing falsely...”
(emphasis is mine)
6. Mr. Sher Singh, UDC (PW4) stated in his testimony that the Will as
per the record was executed by the testatrix, and that, its registration was
reflected in the record. PW4, however, stated that he had no personal
knowledge with regard to the registration of the Will; his testimony was
based on record, available in the Sub-Registrar’s office.
7. Respondent no.8 (RW1), while adhering to a stand that the
relationship between the testatrix and the appellant was strained, accepted
that she had no written documents in her possession which would support
her assertion. Respondent no.8 also accepted the fact that her husband had
withdrawn a sum of Rs.38 Lakhs from the bank which had created the FDR
in respect of the funds received from the purchaser of the Saket property
pursuant to the death of the testatrix. Respondent no.8 went on to state that
she was not aware as to whether or not her husband had informed the bank
about the existence of the Will in issue, and that, there were other legal
heirs, who may have a right on the amount withdrawn by her husband.
7.1 Respondent no.8, however, denied the suggestion that the Will in
issue was in force or that it had not been revoked by the testatrix.
Respondent no.8 also stated; albeit voluntarily, that the testatrix had told her
that the Will was executed by her, under pressure.
8. Having examined the record and, the testimony of the witnesses, what
has emerged clearly, is that, the testimony of Mr. Shailender Bhardwaj
(PW2) is crucial to the case in arriving at the conclusion whether the Will in
FAO 330/2006 Page 8 of 18
issue, had been executed by the testatrix.
8.1 The learned DJ has come to the conclusion that the appellant has not
been able to discharge the onus that the Will was executed by the testatrix.
In reaching this conclusion, the trial court has relied on the testimony of Mr.
Shailender Bhardwaj (PW2) who, stated in his cross-examination that he had
accompanied Ms. Dhaneshwari Devi, the advocate engaged by the appellant,
to the Sub-Registrar’s office, and that, at that point in time, he was shown
the Will, for the first time, which had already been signed by the testatrix.
8.2 Based on this, the learned DJ, relying on the provisions of Section 63
(c) of the Act, came to the conclusion that since, PW2 had not seen the
testatrix sign the Will, the execution of the Will was not proved.
8.3 According to me, this conclusion of the learned DJ is flawed for more
than one reason. First of all, PW2, seems to have deviated from his
testimony given on 23.01.2004. As indicated above, on that date, he had
said that the testatrix had executed the Will in his presence and in the
presence of Ms. Dhaneshwari Devi, the advocate of the appellant. He in
fact, identified not only the signature and the thumb impression of the
testatrix but also those which had been appended by him and Ms.
Dhaneshwari Devi.
8.4 PW2 has gone on to state that the Will was registered on the same
date in his and Ms. Dhaneshwari Devi’s presence before the Sub-Registrar.
On being recalled for cross-examination by respondent no.8’s counsel, he
stated that he and Ms. Dhaneshwari Devi were the only two persons who
were present at the Sub-Registrar’s office and that, he was shown the Will
for the first time, which, apparently, already bore the signatures of the
testatrix.
8.5 What is, however, vital is that PW2 categorically states that the
FAO 330/2006 Page 9 of 18
testatrix told him to sign as a witness on the Will. PW2 affirmed the fact
that the testatrix had appended her signatures on the Will before the Sub-
Registrar for the purposes of bringing about registration of the Will. PW2
also went on to state that Ms. Dhaneshwari Devi had appended her
signatures on the Will, in his presence.
8.6 Having regard to these facts, it is quite clear that PW2 received
personal acknowledgment from the testatrix that she had appended her
signatures and her thumb impression on the Will. Provisions of Section 63
(c) of the Act provide that the Will shall be attested by two or more
witnesses, each of whom, should have seen the testator sign or affix his
mark to the Will or have seen some other person sign the Will in the
presence and by the direction of the testator or, have received from the
testator a personal acknowledgment of his signature or mark or the signature
of such other person. Furthermore, each of the witnesses are required to
sign the Will in the presence of the testator but it is not necessary for more
than one witness to be present at the same time. Furthermore, no particular
form of attestation is necessary.
8.7 Clearly, in the present case, PW2 received, as indicated above,
personal acknowledgement of the testatrix that she had appended her
signatures and thumb impression on the Will. Thus, even if one were to go
by his testimony, which PW2 gave on 31.03.2004 (on being recalled for
cross-examination by the counsel for respondent no.8), no legal infirmity
could have been appended to the execution of the Will on this ground.
8.8 That apart, the affidavit of respondent no.8 (Ex.PW3/4) clearly
indicates that she had not questioned the genuineness and the legal validity
of the Will. In fact, she went as far as to state that respondent no.1 was the
sole and exclusive owner of the Saket property. Quite clearly, respondent
FAO 330/2006 Page 10 of 18
no.8, for reasons best known to her, chose to take a different stand while
filing her objections; something went awry in the interregnum.
8.9 Neither in the impugned judgment, the District Judge has noticed this
aspect of the matter nor was any suggestion been made to the appellant
(PW3) that the affidavit (Ex. PW3/4) was not genuine. In fact, in the
objections filed by respondent no.8, she categorically states in paragraph 9
that she was not in a position to comment whether the Will had been
lawfully executed by the deceased testatrix without any influence or
coercion. A perusal of the objections filed would show that her resistance to
the probate action was premised principally on one singular fact, which
was, that the testatrix having disposed of the Saket property, during her life
time, could not seek probate of the Will. For the sake of convenience,
paragraph 9 of the objections filed by respondent no.8 is extracted hereafter.
“..With reference to para 5, I am not aware and cannot comment
whether the said Will was lawfully executed by late Vidya
Hingorani without any influence or coercion. At any rate the
petitioner cannot rely on the said Will or seek a probate, as late
Vidya Hingorani during her life time had acted contrary to her
intention stated in the said Will and agreed to dispose of the
said property which was to be bequeathed to the petitioner..”
9. Apart from the above, the stand taken by respondent no.8 , in her
objections , w a s that , the money received on the sale of the Saket
property , was kept in the bank account belonging to her husband, Mr.
G.V. Hingorani, as he was appointed as the nominee / beneficiary vis-
a-vis the said amount. To be noted, out of the total sum of Rs.55
lakhs, supposedly received by the testatrix, Rs.38,27,760/- was kept in
the bank account.
9.1 I may indicate herein that in so far as the probate court is concerned, it
FAO 330/2006 Page 11 of 18
is required only to examine as to whether a valid and a legal Will has been
executed. Therefore, while the affidavit of respondent no.8 (Ex. PW3/4)
may not legally tilt the matter one way or the other, with regard to the proof
of execution of the Will, the affidavit though, does go to show the shift in
the stand of respondent no.8 which, in a sense, explains the change in stand
by respondent no.8.
10. Having said so, the other question which arises is : whether the Will
continued to subsist after the testatrix during her life time had initiated the
process of disposing the property i.e. the Saket property.
10.1 For this purpose, one would have to advert to the definition of the
term, ‘Will’, as given in the Act. Section 2(h) of the Act, defines, the Will,
to mean a legal declaration of the intention of a testator with respect to his
property, which he desires to be carried into effect after his death.
Therefore, the essential characteristics of a Will, are as follows : (i). that
there is a legal declaration of the intention of the testator; (ii). the legal
declaration pertains to his property; and (iii) lastly, he desires that the
declaration should take effect, or in other words, operates after his death.
10.2 It is, therefore, stated that a Will is an instrument by which a person
disposes of his property and the disposition is to take effect after his demise.
Therefore, by its very nature, the testament is both ambulatory and revocable
during the life time of the testator. [See Uma Devi Nambiar Vs. T.C.
Sidhan, (2004) 2 SCC 321 ].
10.3. The question therefore, arises is : whether the testament / legal
declaration made in the instant case continued to operate as a Will?
10.4 The facts, which have emerged, clearly demonstrate that all three
ingredients, which are required in law, for a document to be termed as a Will
(Ex.PW4/A), were present. The fact that the testatrix during her life time
FAO 330/2006 Page 12 of 18
entered into an agreement to sell qua which, admittedly, a suit is pending
adjudication, would not, to my mind, alter the nature of the document. The
revocation, if any, can only take place in accordance with the provisions of
Section 70 of the Act. Section 70 of the Act, inter alia, provides that no
unprivileged Will or codicil nor any part thereof, can be revoked [otherwise
than by the operation of law (say, in the case of marriage of the maker of the
Will, see : Section 69 of the Act)] except by some writing declaring an
intention to revoke, which is executed in the same manner, in which an
unprivileged Will is required to be executed under the Act or, by burning,
tearing, or destruction of the same either by the testator or by some other
person in his presence and by his direction with the intention of revoking the
Will in issue. The modes of revocation of a Will, are exhaustive under the
Act. [See Surender Nath Chatterjee Vs. Sivdas Mookherjee, AIR 1922
Calcutta 182 ].
10.5 In the facts of the instant case, the evidence placed on record does not
establish conclusively that the testatrix had taken the final step to revoke the
Will in issue, altogether. The testatrix’s decision to enter into an agreement
to sell and thereupon, receive monies in the form of advance, did not, in law,
translate into revocation of the Will in issue. Whether or not the testatrix
would have taken that decision, ultimately, can only be in the realm of
speculation as the event of her death interceded in the meanwhile.
Revocation of a Will, under law, is, as solemn an act as, the execution of the
Will itself. Mere intention to revoke the Will cannot supplant the legal
requirement of revoking the Will, as provided under Section 70 of the Act.
[See Lati Kabala Dasi Vs. Anil Behari Ghose, AIR 1953 Calcutta 103 ].
10.6 Therefore, the objection taken to the probate action by respondent
no.8 that no probate could be granted in the circumstances that the testatrix
FAO 330/2006 Page 13 of 18
had initiated steps for selling the Saket property, in my view, is not
sustainable in law.
11. Before I proceed further, let me deal with certain specific arguments
advanced by Mr. Chaudhary in the written submissions filed by him.
11.1 The first and foremost argument advanced by Mr. Chaudhary on
behalf of respondent no.8, was that, the Will in issue was executed under
suspicious circumstances for the following reasons : (i). That the text of the
Will was prepared by the lawyer of the appellant, Ms. Dhaneshwari Devi;
(ii). The attesting witness (PW2) was appointed by Ms. Dhaneshwari Devi;
(iii). The appellant had accompanied the testatrix to the office of the Sub-
Registrar for getting the Will registered; (iv). Lastly, that the appellant had
carried the original Will with her to USA.
11.2 In other words, the argument of Mr. Chaudhary was that the aforesaid
circumstances demonstrated that the appellant had taken a prominent part in
the execution of the Will in issue, which conferred upon her a substantial
benefit. In support of these submissions, Mr. Chaudhary had relied upon the
following judgment :-
Niranjan Umesh Chandra Joshi Vs. Mirdula Jyoti Rao,
2007 (1) AD (SC) 477.
11.3 The aforesaid argument was elaborated upon by Mr. Chaudhary by
contending that the testatrix was over awed, influenced and pressurized by
the appellant to execute the Will in issue, and this, was demonstrable by the
fact that immediately after the appellant had left the country, the testatrix
executed an agreement to sell qua the Saket property. The fact that the
testatrix deposited a part of the consideration in the bank account and made
the husband of respondent no.8 a nominee / beneficiary in respect of the
same, would show, according to the learned counsel that she had no
FAO 330/2006 Page 14 of 18
intention to bequeath the Saket property to the appellant.
11.4 It was, further, submitted by Mr. Chaudhary that the Will was not
proved as PW2 in his cross-examination clearly stated that when the Will in
issue was shown to him for the first time, at a point in time when it was
already signed by the testatrix. Thus according to Mr. Chaudhary, there was
no proper execution of the Will. It was contended by the learned counsel
that the witness (in this case, PW2) should have put his signatures ánimo
attestandi ’. In other words, an attesting witness, should have either seen the
executant append his / or her signature on the Will or should have received
his or her personal acknowledgement of the same. Mr. Chaudhary said that
this aspect was missing in the instant case. The reliance for this proposition
was placed on the following judgment :-
N. Kamalam (Dead) and Anr. Vs. Ayyaswamy and Anr.,
AIR 2001 SC 2802.
11.5 Lastly, Mr. Chaudhary contended that the testatrix was a spinster and
that her relatives were Class-II heirs. Based on this, learned counsel
submitted that the appellant ought to have impleaded the brother of the
testatrix. In this behalf, the provision of Section 263, Explanation (b), of the
Act was sought to be relied upon. It was, thus, stated that the citation issued
would not suffice in the instant case as the circulation was made only in
India, by the brother of the testatrix who was not a party and was a resident
of USA.
12. In so far as the first aspect of the matter is concerned, as to whether
the Will in issue can be said to have been executed in suspicious
circumstances, what has to be appreciated is the following :-
12.1 In the objections filed with the trial court, no such pleas were raised.
In fact, as noticed by me, in the foregoing paragraphs of my discussion,
FAO 330/2006 Page 15 of 18
respondent no.8, in paragraph 9 of her objections, has clearly stated that she
was not able to comment as to whether or not the Will was lawfully
executed by the testatrix without any influence or coercion. Therefore,
clearly, the submissions made by Mr. Chaudhary are not backed by relevant
pleadings or evidence.
12.2 As rightly contended by Mr. Mathur, during the course of the
arguments, the testatrix was an educated lady who at the time of her death
was only 63 years of age and worked as a Vice-Principal in a Girl’s School.
Furthermore, the testimony of the PW2 clearly establishes that at the time
of execution of the Will, the testatrix was in a sound disposing mind.
12.3 Therefore, the mere fact that the appellant had arranged for a lawyer,
who in turn had asked PW2 to attest the Will, by itself, would not have me
reach a conclusion that the Will in issue, was executed either under undue
influence and/ or coercion or as alleged in suspicious circumstances. This is
more so, in the circumstances that the testatrix passed away nearly one and
a half years after the execution of the Will. In case the testatrix wanted to
revoke or supersede the Will, she could have easily done so either by
executing the document of revocation or by executing a fresh Will.
12.4 The fact that the appellant had left the country, immediately, after the
execution of the Will is not disputed by respondent no.8. Therefore, the
other argument advanced by Mr. Chaudhary in support of his argument that
there was undue influence exerted by the appellant by relying upon the fact
that the appellant had carried the original Will with her would also have no
relevance. The Will, as is well settled in law, is both an ambulatory and a
revocable document. As indicated above, the testatrix could have easily
executed a fresh Will, if she so desired.
12.5 In so far as the submission made by Mr. Chaudhary that PW-2 had
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stated that when, he attested the Will, it had already been signed by the
testatrix, has been dealt with by me hereinabove in extenso. In the context
of evidence which has emerged and the provisions of Section 63(c) of the
Act, which have been discussed at length by me, suffice it to say, in this
particular case, even if one were to go by the testimony given by PW2 (after
he was recalled by respondent no.8), it is clear that he had received
indication from the testatrix in the Sub-Registrar’s office that she had
appended her signature on the Will. In my opinion, the validity of Will
cannot be questioned on this score as well.
13. The last submission of Mr. Chaudhary with regard to the purported
legal flaw in the institution of the probate action, on account of the fact that
the brother was not impleaded as party is also a plea which is not tenable in
the instant case.
13.1 A perusal of paragraph 7 of the probate petition, would show that the
appellant had set out the names of all near relatives. These relatives were
also impleaded as parties to the probate action. The record shows notices
were issued to the relatives, some of whom were shown as residents of USA.
Apart from respondent no.8, none of the others came forth to contest the
petition. Even in this court, notices were issued to respondent no.2 to 7 (i.e.
the relatives of the deceased testatrix) apart from respondent no.8 to 10.
Despite service none of them entered appearance in the matter.
13.2 As indicated above, the appellant is the wife of one of the brothers.
Quite clearly, that brother was not interested in contesting the petition filed
by his wife, who was the sole beneficiary of the Will in issue. This
objection was not taken by respondent no.8, before the trial court. The trial
court seems to have, on its own, cited this as one of the reasons for
dismissing the probate petition.
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13.3 In my view, in the given facts and circumstances, the probate petition
could not have been dismissed, on that ground. The provisions to Section
263, Explanation (b), cited by Mr. Chaudhary would have no applicability as
that provision empowers the court to revoke or annul the grant of probate in
cases where it is obtained fraudulently by making false suggestions or by
concealing material particulars of the case. No such allegation was made by
respondent no.8 nor did the court return any findings in that respect.
14. For the reasons given above, the appeal is allowed. The impugned
judgment is set aside.
15. Accordingly, probate is granted in favour of the appellant. The
Registry will act on the judgment and issue a probate in the form prescribed
in Schedule-VI of the Act, as applicable to the instant case, upon the
appellant fulfilling necessary formalities including payment of the requisite
court fee.
16. Parties shall, however, bear their own cost.
RAJIV SHAKDHER, J
NOVEMBER 26, 2015
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