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2018 DIGILAW 1157 (HP)

Surbhi Sood v. Surender Kumar Sood

2018-06-26

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Tarlok Singh Chauhan, J. The petition for probate filed by the respondent herein was allowed by the learned trial Court and aggrieved thereby the appellants have filed the instant appeal under Section 299 of the Indian Succession Act, 1925, (for short ‘Act’). 2. The respondent approached the learned trial Court by filing a probate petition under Section 276 of the Act for grant of probate of the amount of Rs.5,00,000/- which was lying deposited in ‘Ganpat Kunj, Central Bank Building & Shopping Complex, LIC Claim, General Provident Fund and Gratuity. 3. It was averred that Manohar Lal Sood, real brother of the respondent died on 06.01.2005 at PGI, Chandigarh leaving behind the respondent as the sole legal heir by virtue of Will dated 27.11.2004 executed by deceased Manohar Lal Sood in his favour whereby he bequeathed his entire property movable and immovable in his favour. The deceased had also left certain liabilities at the time of his death. 4. The appellants, who were respondents before the learned trial Court, filed their reply wherein preliminary objections regarding maintainability, cause of action, nonjoinder and mis-joinder of necessary parties, were raised. On merits, it was denied that deceased Manohar Lal Sood had executed the Will in favour of respondent and it was further averred that in fact the deceased was not in state of good physical health and mind so as to enable him to execute the alleged Will. That apart, the deceased was not having cordial relations with the respondent owing to dispute of rents of the bank building at Pragpur. It was on this basis that the alleged Will was not only claimed to be forged one but a fraudulent document. It was also contended that the deceased had not left behind any liability and, therefore, the petition being false and fraudulent, should be dismissed with costs. 5. The learned trial Court on 18.05.2006 framed the following issues:- “1. Whether deceased Manohar Lal Sood has executed a legal and valid Will in favour of the petitioner, as alleged? OPP. 2. Whether the petition is not maintainable in the present form, as alleged? OPR. 3. Whether the petition is bad for non-joinder of necessary parties? OPR. 4. Whether deceased Manohar Lal Sood was not having cordial relations with the petitioner as alleged? If so, its effect? OPR. 5. Relief.” 6. OPP. 2. Whether the petition is not maintainable in the present form, as alleged? OPR. 3. Whether the petition is bad for non-joinder of necessary parties? OPR. 4. Whether deceased Manohar Lal Sood was not having cordial relations with the petitioner as alleged? If so, its effect? OPR. 5. Relief.” 6. After recording evidence and evaluating the same, the learned trial Court allowed the petition, constraining the appellants to file the instant appeal. 7. It is vehemently argued by Shri Bhupender Gupta, Senior Advocate, assisted by Ms.Poonam Gehlot, Advocate, for the appellants that the learned Court below has erred in upholding the Will, whereas, the same was shrouded with suspicious circumstances that have been duly proved on record. 8. On the other hand, Shri Ramakant Sharma, Senior Advocate, assisted by Mr.Basant Thakur, Advocate, for respondent No.1, would contend that the findings recorded by the Court below being in conformity with law need to be upheld, more particularly, when the learned trial Court has dealt with each and every contention regarding suspicious circumstances raised by the appellants and only thereafter returned the findings. I have heard the learned counsel for the parties and have gone through the records of the case. 9. It is strongly urged and rightly so by the learned counsel for the appellants that it is for the propounder to dispel all suspicious circumstances surrounding the Will. The locus classicus on the subject is the judgment of the Hon’ble Supreme Court in H.Venkatachala Iyengar v. B.N. Thimmajamma and others AIR 1959 Supreme Court, 443, wherein it was held 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 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, Evidence Act are relevant for this purpose. Under S. 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 Ss. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S. 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 Ss. 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, Ss. 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 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. 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 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 prescribe by S. 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.” “20. There may, however, be cases in which the execution of the will may be surrounded by suspicions 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. 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 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. 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 it 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. Hinkson, 50 Cal W N 895 : (A I R 1946 P C 156) "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 vigilent, cautious and circumspect.” “39. In this connection we would like to add that the learned trial Judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned Judge has referred to the decision of the Calcutta High Court in Surendra Nath v. Jahnavi Charan, I L R 56 Cal 390 : (AIR 1929 Cal 484). In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr. In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr. Justice B. B. Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case. Unfortunately the learned trial Judge did not properly assess the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the tastatrix. There is also another circumstance which may be mentioned and that is that the Sub-Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial. On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial Court on the question of the due and valid execution of the will.” 10. It is the admitted case of the parties that Manohar Lal Sood, testator, was the real brother of the respondent and father of appellant No.1 and former husband of appellant No.2 Shama Sood, as their marriage had been dissolved by decree of mutual divorce on 13.11.2003. 11. It also needs to be noticed that as the appellant No.2 had already obtained a decree of divorce from the testator and thereby severed all ties with him, she being stranger, has no locus standi to file the instant appeal. However, appellant No.1 being daughter of deceased Manohar Lal Sood is fully entitled to maintain the present appeal. 12. 11. It also needs to be noticed that as the appellant No.2 had already obtained a decree of divorce from the testator and thereby severed all ties with him, she being stranger, has no locus standi to file the instant appeal. However, appellant No.1 being daughter of deceased Manohar Lal Sood is fully entitled to maintain the present appeal. 12. Shri Bhupender Gupta, learned Senior Counsel for the appellants, while addressing arguments regarding alleged suspicious circumstances has actually reiterated those very contentions which were in fact raised before the learned trial Court and repelled by assigning cogent and convincing reasons. He has further argued that the presence of the scribe and as to why he was specially chosen to write the Will when he had no knowledge regarding the same has not been explained by the respondent. In addition thereto, he would argue that the address of S.P. Sood was written later on on the Will and there is no reason assigned why the words ‘applicant’ and ‘deponent’ find mention in both the pages of the Will. He would further argue that there is no plausible explanation given as to why the Will was not registered, more particularly, when there was sufficient time for the same. 13. In order to prove due execution of the Will, respondent has examined Colonel J.P. Sharma, who in fact, is the scribe of the Will and deposed on oath in the manner in which the Will Ex.AW-1/A was got scribed by the testator Manohar Lal Sood from him and when the Will had been written, how the same had been taken by testator from him and after going through the Will he had signed the same and thereafter S.P. Sood, one of the attesting witnesses, signed the same and thereafter other attesting witness Chinti Devi had affixed her thumb impressions on the same. There is nothing on record to doubt the presence of Shri J.P. Sharma at the given time and place. That apart, the requirement of the law is that the Will has only to be scribed either by a lawyer or a petition writer or any other person, who is well conversant in writing of Wills. Therefore, once the presence of Shri J.P. Sharma is proved on record, there is no reason to view his presence with suspicion, especially, when he has appeared in the witness box and subjected himself to cross-examination. Therefore, once the presence of Shri J.P. Sharma is proved on record, there is no reason to view his presence with suspicion, especially, when he has appeared in the witness box and subjected himself to cross-examination. 14. Apart from the above, PW-3 S.P. Sood has successfully proved the due execution of the Will on record. As regards the writing of the word applicant and deponent on both the pages of the Will, even this cannot be viewed with suspicion, more particularly, in view of the fact that the scribe of the Will Colonel J.P. Sharma was not a professional scribe and in fact had not scribed any Will earlier to this and obviously therefore he was not aware of the technicalities of the words i.e. either applicant or deponent. 15. Insofar as the other contention of the appellants that the address of the S.P. Sood was written later on on the Will, I really do not find this to be borne out from the records. Apart from the above, as observed earlier, similar contention had been raised before the learned trial Court and the same was rightly repelled in the following manner:- “(a) The learned counsel for the respondents contended with vehemence that as it is the case of petitioner that Will Ex. AW-1/A was scribed by AW-1 Colonel J.P. Sharma and the same was attested by AW-3 Sat Parkash Sood brother and Smt. Chinti Devi mother of the petitioner and it has also come on record that the deceased was suffering from liver cancer and was remained under medical treatment at P.G.I. Chandigarh, the deceased was not in his sound disposing mind on the relevant time when the alleged Will was executed and further when no independent witness had attested the alleged Will, the Will is surrounded by the suspicious circumstances and the same cannot be said to be genuine one. But there is no force in the contention of learned counsel for the respondents as there is no bar that family member can not become witness of the Will as it is the mandate of the law that Will should be attested by two witnesses and when it has come on record that the Will was attested by PW-3 S.P. Sood real brother of testator and Smt. Chinti Devi mother of testator who has already died and as due execution of the Will can be proved even by one of the attesting witness, to my mind since nothing has come in the statement of PW-3 S.P. Sood attesting witness of the Will which may make the Will doubtful, it is unsafe to hold that the Will Ex. AW-1/A is shrouded with suspicious circumstance. (b) The learned counsel for the respondents highlighted another suspicious circumstance surrounding the due execution of the Will Ex.AW-1/A by contending that above the name and signature of testator words “applicant & deponent” are written on both pages of the Will which clearly indicates that in fact the said papers were to be used by the propounder of the Will for some application or affidavit and further when the sufficient space was left on the first page of the alleged Will there was no necessity for the testator to shift on the next page of the Will and in this manner alleged Will is suspicious one and is not valid document. In support of his case learned counsel for the respondents relied upon the judgment of Hon’ble Punjab and Haryana High Court in the case titled as Vesakha Singh versus Jit Singh & another 1996(2) Civil Court Cases 339 P&H) in which it was held that when the uniform space between first 10 lines and the matter seems to be concluded within the next two lines and their space is more as compared to previous 10 lines which shows that signatures were already obtained and writing was done thereafter, the Will is not a valid Will. The learned counsel for the respondents further relied upon the judgment of Hon’ble Apex Court in the case of K. Laxmanan versus Thekkayil Padmini & others 2009 (1) Civil Court Cases 526 (S.C.) where the Court found that there was ocean of difference between signatures of testator put on each and every page, in view of suspicious circumstances Will not proved. However, the ratio laid in the aforesaid judgments by the Hon’ble Punjab & Haryana High Court and Hon’ble Apex Court respectively is not applicable in the present case as there is no space between the lines of the Will and also on both pages which makes the Will suspicious one, especially when the due execution of the Will stands proved by the scribe as well as by attesting witness. So far as the words applicant and deponent appear on the Will are concerned as it has come on record that scribe of the Will Colonel J.P. Sharma or testator were not professional scribe and they cannot be presumed to have aware of the technicalities of words applicant or deponent and in my opinion the appearance of the words applicant and deponent do not automatically prove that the said documents were prepared for filing application or affidavit. (c) Another suspicious circumstance highlighted by learned counsel for the respondents surrounding the due execution of the Will is that through the Will Ex.AW-1/A, the testator has disinherited his daughter Kumari Surbhi with whom the testator had all love and affection during his life time despite of the fact that the marriage of the testator was dissolved with his wife Shama Sood respondent No.3, the alleged Will seems to be unnatural one. But again there is no force in the contention of learned counsel for the respondents as it has come on record from the copy of order dated 13.11.2003 Ex.P-I along with copy of application mark ‘A’ that the respondent No.3 being natural guardian and mother of respondent No.2 Kumari Surbhi received Rs.2,00,000/- as all time settlement amount from the testator for the maintenance of Kumari Surbhi during her life time and the disinheritance of Kumari Surbhi through Will Ext.AW-1/A by the testator cannot be said to be unnatural one, especially when each and every fact has been explained in the Will.” 16. As regards the non registration of the Will, the same in itself, without there being any other material on record to dispel the Will, cannot be taken to be an adverse circumstance sufficient enough to discard the Will. 17. As regards the non registration of the Will, the same in itself, without there being any other material on record to dispel the Will, cannot be taken to be an adverse circumstance sufficient enough to discard the Will. 17. Even otherwise, the Will in question was executed on 27.11.2004, whereas, the testator died within 40 days of the execution of the Will and it has come on record that the testator on account of his personal habits of being chain smoker and heavy drinker was required to be admitted in the hospital, but his mental faculties were absolutely intact. 18. In fact, it has come on record in the testimony of PW-3 Sat Parkash Sood that the testator was brought to Chandigarh on 15.12.2004 and admitted in the hospital at PGI where he died on 06.01.2005. Therefore, in the given circumstance, the mere fact that the Will has not been registered cannot by itself be taken to be as a suspicious circumstance. 19. The aforesaid findings cannot be termed to be perverse as the same being based upon correct appreciation of the pleadings as also the records of the case need to be upheld. 20. In view of the aforesaid discussion, I find no merit in this appeal and accordingly the same is dismissed. Pending application, if any, also stands disposed of.