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Ajit Singh Vs. Nand Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 136 of 1977
Judge
Reported in22(1982)DLT22
ActsSuccession Act, 1925 - Sections 63; Evidence Act, 1872 - Sections 67
AppellantAjit Singh
RespondentNand Singh and ors.
Advocates: G.S. Vohra,; M.S. Vohra,; U.S. Sachdeva and;
Excerpt:
.....of the deceased. i was only on 12th march 1969 for the first time the appellant alleged that his father had executed a will. dismissing the appeal.; 1. it is true that if a will is proved to have been executed by the testator while in a sound disposing mind, it is deemed to have been proved. but if there are suspicious circumstances surrounding the execution of the will mere proof of the will in accordance with the provisions of law should not mean that the will was executed by the testator. the presumption of due execution of the will by proof of the signatures is liable to be rebutted by proof of suspicious circumstances. if suspicious circumstance had been created on record the propounder is duly bound to remove the suspicion from the mind of the court by satisfactory and cogent..........grant of probate of the will dated 22nd october, 1962 alleged to have been executed by his father arjan singh. (2) on 17th may, 1972 the appellant filed an application for the grant of probate alleging that his father arjan singh had executed his last will and testament on 22nd october, 1962 bequeathing plot no. i-88a, kirti nagar, new delhi and one shop no. 119, gaffar market, karol bagh, new delhi to him, that arjan singh died on 12th april, 1963, that the will was attested by the witnesses. (3) nand singh, one of the brothers of the appellant in his written statement pleaded that his father never executed any will during his life time, he died intestate on 12th april, 1963, that the said will was a forged document, that in 1965 the appellant along with his mother and sister.....
Judgment:

Sultan Singh, J.

(1) Ajit Singh, appellant challenges the judgment and order of the District Judge, Delhi dated 1st March, 1977 dismissing his application for the grant of Probate of the Will dated 22nd October, 1962 alleged to have been executed by his father Arjan Singh.

(2) On 17th May, 1972 the appellant filed an application for the grant of Probate alleging that his father Arjan Singh had executed his last will and Testament on 22nd October, 1962 bequeathing Plot No. I-88A, Kirti Nagar, New Delhi and one Shop No. 119, Gaffar Market, Karol Bagh, New Delhi to him, that Arjan Singh died on 12th April, 1963, that the Will was attested by the witnesses.

(3) Nand Singh, one of the brothers of the appellant in his written statement pleaded that his father never executed any Will during his life time, he died intestate on 12th April, 1963, that the said Will was a forged document, that in 1965 the appellant along with his mother and sister Kaushalaya Devi had filed a suit for declaration against the other heirs of Arjan Singh alleging that Plot No. 1-88A, Kirti Nagar, New Delhi measuring 200 sq. yards was owned by his father Arjan Singh exclusively, that the name of Nand Singh was entered in the sale deed dated 12th October, 1962 as a benamidar, that on the death of Arjan Singh all his heirs namely, widow three sons and four daughters became joint owners of the said plot of land in equal shares, that the suit was dismissed on 5th September, 1966 by the Subordinate Judge, 1st Class, Delhi holding that Arjan Singh and Nand Singh were owners of the plot in equal shares as per sale deed dated 12th October, 1962. Nand Singh respondent has further pleaded that during the trial of the civil suit the appellants had made a statement on oath on 9th March, 1966 that his father Arjan Singh never executed any Will, that after the death of his father he (Nand Singh) filed an application in December. 1966 before the Managing Officer, Jamnagar House, New Delhi, that shop No. 119. Ghaffar Market, Karol Bagh, New Delhi allotted to Arjan Singh be transferred to all his legal heirs, that the appellant by his application dated 12th March, 1969 for the first time made an application before the Managing Officer that Arjan Singh had executed the Will dated 22nd October, 1962, that on the basis of the appellant's statement in the civil court that his father had left no Will, the Managing Officer and all other authorities under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 held that there was no Will of Arjan Singh and, thereforee, the said shop was ordered to be transferred to the legal heirs in equal shares.

(4) Inreplication the appellant pleaded that the Will dated 22nd October, 1962 of Arjan Singh came to his knowledge during the proceedings before the Managing Officer, Jamnagar House, New Delhi that one BanarsiDass, with whom the Will was deposited by the deceased, placed the case before the Managing Officer.

(5) The appellant as Public Witness 3 has deposed that his father had executed a Will, that it was scribed by Manohar Lal, clerk of Shri Bhagwan Dass, Advocate that Banarsi Dass and Bhagat Ram attested the Will in the presence of his father, that the Will was executed on 22nd October, 1962 and his father had died on 12th April, 1963, that the Will was handed over to Banarsi Dass for safe custody. In other words the appellant during the trial of the Probate proceedings deposed that he was present at the time of execution of the said Will. In replication he had pleaded that he came to know of the Will when the same was placed before the Managing Officer, New Delhi by Banarsi Dass. Thus there is contradiction between the plea and the evidence led by the appellant before the trial court.

(6) Nand Singh in his written statement specifically challenged the genuineness of the Will but still the appellant did not take steps to prove the same with a view to clear the conscience of the court. It has not been proved as to who scribed the Will. Manohar Lal, Clerk of an Advocate is alleged to be the scribe of the Will but no evidence was placed on record to prove that the Will was in his hand. The deceased was having a bank account. He knew Urdu and used to sign in Urdu script. No attempt was made by the appellant to get the signatures of the deceased on the Will compared with the admitted signatures in possession of the bank maintaining the account of the deceased. The Will was executed in October, 1962 arid it saw the light of the day in March, 1969 while Arjan Singh had died in April, 1963. In other words, no body disclosed about the existence of the Will for a period of more than five years to anyone. The Explanationn that the Will was deposited with Banarsi Dass who had misplaced it and had only found in 1968, is not believeable. As already stated, the appellant filed a suit for declaration regarding the plot in 1965. Had he been aware of the Will he would have claimed the exclusive ownership of the plot and the shop instead of claiming a declaration that all the heirs of the deceased were owners of the plot and the shop. On the date of execution of the Will the deceased had one son who was receiving education and two unmarried daughters besides a wife. The deceased would have made provision for his heirs. The Will provides that Harminder Singh, another son of the deceased, after attaining majority would have no right or interest in the suit property. The contents of the Will are unfair and unnatural. There was no reason for the deceased to deprive his other heirs of both the properties. The depositions of the two. attesting witnesses who are neighbours of the appellant has been held by the trial court as unreliable. I have also gone through the entire evidence on record and there is no reason to reverse the various observations and findings of the trial Court. Learned counsel for the appellant next submits that the appellant has proved the Will in accordance with the provisions of law i.e. Section 63 of the Indian Succession Act and Sections 67 and 68 of the Evidence Act and thereforee it must be held that the deceased signed the Will and that the deceased will be presumed to have known its contents. It is true that if a Will is proved to have been executed by the testator while in a sound disposing mind, it is deemed to have been proved. But if there are suspicious circumstance surrounding the execution of the Will were proof of the Will in accordance with the said provisions of law, would not mean that the Will was executed by the testator. The presumption of due execution of the Will by proof of the signatures is liable to be rebutted by proof of suspicious circumstances. If suspicious circumstances had been created on record, the propounder is duty bound to remove the suspicion from the mind of the court by satisfactory and cogent evidence. In the instant case the appellant has appeared as his own witness. He has also produced two witnesses of the Will but the examination of these witnesses and his own statement, in the facts and .circumstances of the present case is not sufficient to hold that the testator validly executed the Will in question. The dispositions made in the Will -by the testator are unnatural, improbable and unfair. The appellant according to his own admission took prominent part in the execution of the Will. The Will in question confers substantial benefits on .the appellant propounder of the Will. The appellant has been changing his stand, from time to time. He has been making statements according to his own convenience at relevant times. He filed the civil suit for declaration that all the heirs of the deceased were the joint owners of the plot. This suit was filed in 19.65. He appeared as a witness in March, 1966 and made a statement that the testator had left no Will. There were proceedings for transfer of rights in the said shop in favor of all the heirs of the .testator initiated by Nand Singh respondent before the Managing Officer Jamnagar House, New Delhi. The appellant appeared before the Managing Officer on 10-3-1970 and made a. statement copy of which is Ex. H-3. He stated 'My father made a Will in my favor. ........ .The Will was made in my presence..... ..I conveved the fact of the Will to all the numbers of the family who have assembled at the Kirya of my father..........As the Will was not traceable I thereforee made a statement in the court that my father did not execute any Will ..: I do not remember if I bad made a statement in the civil court on 9-3-1966, that my father did not execute any Will. . ... ... I know about the Will before the civil suit was filed.' The testator died in April, 1963. The Managing Officer did not believe the appellant and he ordered transfer of the shop in favor of the heirs of the deceased in equal share. While the proceedings in appeal or revision were pending before the authorities under the Displaced Persons (Compensation and Rehabilitation) Act, 1954, the appellant filed the application for the grant of probate of the said Will on 7-5-1972. In his replication he disclosed his ignorance about the execution of the Will till the proceeding were taken for the transfer of shop before the Managing Officer. He stated in the replication that he came to know of the Will only during the proceedings before the Managing Officer. He appeared as a witness in Probate proceedings on 31-8-1976. Again he changed his stand. He has deposed that his father had executed the Will in the presence of two attesting witnesses and that the Will was scribed by Manohar Lal, clerk of Shri Bhagwan Dass Advocate, that his father was possessed of sound disposing mind, that the Will was executed on 22-10-1962, that his father had signed the Will in the presence of attesting witnesses. He had identified the signatures at point 'A' in Ex. P. 1. His statement shows that he was present at the time of execution of the Will which is contrary to pleadings. From the narration of these facts it is clear that some time he stated that he was present and was in the knowledge of execution of the Will when it was scribed and executed, and later on he had shown complete ignorance of the existence and execution of the Will. The appellant, it appeared. has no reward for truth. He made his statement from time to time according to his own convenience.

(7) In H. Venkatachala Iyengar vs . B. N. Thimmajamma and others, : AIR1959SC443 , it has been observed that on proof of the signatures of the testator that he has signed the will, he will be presumed to have known the provisions of the instrument he has signed but the said presumption is liable to be rebutted by proof of suspicious circumstances. Further the Supreme Court has observed as follows :

'THEREmay, 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 beproved 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.

(8) 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 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.

(9) It is obvious that for deciding material questions of fact which arise in application 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.'

(10) Similar observations were made by the Supreme Court in Smt. Jaswant Kaur vs . Smt. Amrit Kaur and others : [1977]1SCR925 . In the instant case the appellant has failed to prove the will as genuine. 'After going through the record of this case no doubt is left in my mind that the Will in question is not a genuine Will of Arjan Singh, deceased.

(11) There is no infirmity in the judgment and order of the District Judge. There is no merit in the appeal. It is dismissed with costs. Counsel fee Rs. 300.


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