DINESH KUMAR Vs. KHAZAN SINGH

JUDGEMENT

(1.) This is an appeal filed by Dinesh Kumar. one of the sons of Smt. Kunti Devi the testatrix, challenging the letters of administration granted in favour of Khazan Singh by the District and Sessions Judge, Delhi, on 22.8.1975. Khazan Singh claiming to be the executor of the Will had applied for the probate. The learned District and Sessions Judge, however, found that the Will does not mention the name of Khazan Singh as the executor. The learned District and Sessions Judge, therefore, did not grant the probate to him but since he was an universal legatee, issued letters of administration with the Will attached in favour of Khazan Singh. It may be noted that besides the appellant there are three other sons and two daughters born of testatrix Kunti Devi and Khazan Singh. Three children were minor at the time of the filing of the petition.The Will was made on 26.8.1965. Kunti Devi died on 7.5.1969 and the probate petition was moved by Khazan Singh on 19.2.1972.

(2.) The counsel for the appellant has challenged the genuineness of the Will both in terms of its execution and attestation and has pointed out several circumstances which create suspicion about the genuineness of the Will. The submission is that the learned District and Sessions Judge had not addressed himself to the requirements of law in regard to the proof of the genuineness of the Will and had ignored the decisions of the Supreme Court reported in Rani Purnima Debi and another v. Kumar Khagendra Narayana Deb and Am., AIR 1962 Supreme Court 567, Beni Chand (Since Dead) now by L.Rs. v. Smt. Kamla Kunwar and others. AIR 1977 Supreme Court 63 and H. Venkatachala lyengar v. B.N. Thimmajamma and others. AIR 1959 Supreme Court 443. I will examine the circumstances which according to the appellant raises suspicion regarding the genuineness of the Will. I would also consider at the same time the explanation of Khazan Singh in the regard. However, before doing so it must be noted that according to the law laid down by the Supreme Court the burden to prove the genuineness of that Will is heavily cast on the propounder of the Will. It has another aspect also. He must satisfy the conscience of the court that there is no unconsciensability about his acts or the circumstances in which the Will was created or attested.

(3.) The first suspicious circumstance, according to the counsel for the appellant, is that except Khazan Singh, who is the husband of the testatrix all other close relations and class I heirs such as sons and daughters are completely excluded, in the Will. It is true that usually this unnatural circumstance raises doubt regarding genuineness of a Will. But this aspect of the matter assumes significance where a person altogether stranger to the family is preferred to the close relations. Counsel for the respondent Khazan Singh submits that in point of relations husband is a man of confidence to the wife. Since he is also expected to look after the welfare of the children there was nothing unnatural or suspicious in mentioning Khazan Singh the sole legatee of the Will. The counsel further submits that when the citation was issued by the District Court no other children except the appellant raised any objection to the Will. He also refers to the averment of the appellant himself in his written statement that his relations with his mother were strained. Considering the special facts of this case, exclusion of the children from the Will does not by itself create an impression of the Will being forged or deliberately got executed by Khazan Singh in his favour. However, this circumstance will have to be considered alongwith other circumstance because the total effect of all the circumstances has to be examined before it is decided whether the Will is genuine or not.