RAJ RANI SEHGAL Vs. STATE

JUDGEMENT

(1.) The sole question for consideration in this appeal, which has arisen against an order passed on 5th April, 1995 by Shri S.M.Aggarwal, Additional District Judge, Delhi in Probate Case No.245/91, Raj Rani v. State is that whether the appellant has been able to rule out the suspicious circumstances pertaining to the due execution of will Ex.P.2 and for that the impugned order is vitiated holding that the will Ex.P.2 is sorrounded with innumerable suspicious circumstances, none of which have legitimately been explained by the appellant.

(2.) It is now well settled that mere proof of execution of will by producing scribe or attesting witnesses or proving genuinity of testator's signature itself is not sufficient to estabilish the validity of a will, unless suspicious circumstances are ruled out by the propounder and Court's conscious is satisfied, not only on due execution but about the authenticity. In H.Venkatachala Iyengar v. B.N.Thimmajammaand others, A.I.R. 1959 S.C.443, it was held that a 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. The important distinguising feature, which distinguishes awill from other documents is that unlike other documents, 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. In dealing with the proof of will the Court will start on the same enquiry as in the case of the proof of documents and the propounder would be called upon to show, by satisfactory evidence that the will was signed by the testator; the testator at the relevant time was in a sound and disposing state of mind; he understood the nature and effect of the dispositions and put his signature to the document on his 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, the Court would be justified in making a finding in favour of the propounder. Thus the onus on the propounder can be taken to be discharged on the proof of the essential facts. Further, there may be cases in which the execution of the will may be surrounded by suspicious circumstances and in such like 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. Apart from the suspicious circumstances, in some cases the wills propounded might disclose some other infirmity. In those cases, it will be necessary that propounder is required to remove the said suspicions by clear and satisfactory evidence. It is in the light of this proposition of law that the appeal has to be decided by answering the question posed.

(3.) On 8th October, 1991, the petition for grant of probate under Section 276 of the Indian Succession Act (hereinafter referred to as "the Act") was preferred by the appellant, who is the daughter of late Shri Godarmal, who died on 14th February, 1980. It is alleged that deceased Godarmal at the time of death was residing at T- 23, Old Moti Nagar (now Gowshala Marg), New Rohtak Road, Karol Bagh, New Delhi. He executed a will dated 18th March, 1975 bequeathing immovable properly No.T-23, Old Moti Nagar, New Rohtak Road, Gowshala Marg, New Delhi and the shops No-5571- 5569 situated at Nai Sarak, Delhi in her favour. Godarmal left behind a son and five daughters. One daughter Bimla Rani had expired. The son and the other three daughters are respondents in this appeal) had been excluded from inheritance. The reason for disinheritance, as stated in the petition was being that Godarmal was ill-treated and misbehaved in all manner by his son, respondent No.2, who was having bad habits of drinking, gambling etc. and did not care to look after the deceased. The deceased was residing and was being looked after by the appellant and her husband and was being provided with food, clothes, medicines and other necessities of life. The deceased was in sound disposing state of mind at the time of the execution of the will, which was duty attested by two witnesses. It was alleged that the she came across the will only a few days, when she wanted to dispose of old articles of the deceased for which the lock of the old trunk was broken wherein she found the will amongst other papers.