S AMRJIT SINGH Vs. STATE

JUDGEMENT

(1.) The question that arises for consideration is; whether the evidence led by the propounder of the Will was such as to satisfy the conscious of the Court that the will was validly executed and that the same was genuine.

(2.) In order to answer these question we may have a glance to the relevant facts. Late Shri. Chhattar Singh, father of the propounder and the objector owned a house bearing No. 25/34-35, West Patel Nagar, Delhi. Late Chhattar Singh executed a Will and got it registered with the Sub-Registrar on 5th April, 1978. By the said Will late Chattar Singh bequeathed, his property in favour of his eldest son namely Mohinder Singh to the exclusion of his other legal heirs, namely, daughter Tripat Kaur and son Amarjit Singh. In the Will the Testator stated that this house was his self acquired property and being the owner he could bequeath it. He bequeathed the house in favour of his eldest son because that son contributed towards the costs of instalments and improvement of the house. Moreover, that son Mohinder Singh had been kind and sincere to him. The Will was drafted by one Mr. Balraj Kishan Advocate (Public Witness-3). He also attested the Will. Second attesting witness (Public Witness-2) was also a lawyer. Attesting witnesses accompanied the testator before the Sub-Registrar and were present at the time of registration of the Will on 5th April, 1978. After the death of Chhattar Singh, Mohinder Singh filed the petition under Section 276 of the Indian Succession Act, 1925 for obtaining probate. Notices were issued to the legal heirs of Chhattar Singh i.e. his daughter Tripat kaur and son Amarjit Singh. Citation also appeared in the English daily "Statesman". Tripat Kaur filed reply stating therein that she had no objection to the grant of probate pursuance to the said Will. She admitted the execution of the Will by her father late Chhattar Singh in favour of her eldest brother. Amarjit Singh, the appellant herein, however, contested the Will, inter alia, on the grounds that it was a fabricated document beside being unnatural for the deceased to disinherit his other legal heirs with whom he had cordial relations. The deceased could not have excluded from inheritances his divorcee daughter Tripat Kaur who was living with him and dependent upon him. Moreover, the execution of the Will was shrouded with suspicious circumstances. The Will was in English whereas deceased hardly knew English. Testator was in band state of health in April, 1978. The testator could not have made this Will of his free volition. It was nothing but a fabricated document. These assertions were refuted by the propounder by leading oral and documentary evidence. After considering the oral and documentary evidence by the parties the Probate Court vide the impugned order rejected the objections of Shri. Amarjit Singh and granted the probate in faour of Mohinder Singh. It is against the grant of probate that Shri Amarjit Singh felt aggrieved.

(3.) At the outset it must be said that if an objector raises plea of suspicious circumstances then to dispel these suspicious circumstances surrounding the making of the Will, the party who set up the Will has to offer a cogent and convincing explanation. It must also be understood that mere registration of the Will by itself is not sufficient conclude that the Will is genuine. This may be one of the strong factors in favour to conclude the Will to be genuine. The deprivation of natural heirs by itself is also not in all cases a suspicious circumstance. Similarly, noni-dentification of the testator before the Sub-Registrar would not create suspicious circumstance in every case particularly when a wrong person had not been identified as testator. Keeping these factors into considerations, we have to see whether the Will in question was validly executed. The Apex Court in the case of Smt. Sushma Devi Vs. Pandir Krishna Kumar Missir & Ors. reported in 1971(3) SCC 146 observed that the Judges cannot impose their own standards on behalf of those who executed the Will. The suspicious circumstances pointed out by the objector have to be distinquished by the must be remembered that the probate Court is only concerned with the question whether the document put forward is the last Will and testament of the deceased and was duly expected and attested in accordance with law. That at the time of execution the testator had sound disposing mind. Supreme Court in Joyce Primrose Prestor (Mrs.) (NEE NAS) Vs. Vera Marie Vas (Ms.) and Ors. reported in 1996 (9) Supreme Court Cases 324 held that genuineness of the Will is a question of fact depending upon appreciation of evidence. Therefore, due weight should be given to the Probate Court's findings. Similarly Privy Council in the case of the Suna Ana Arunachellam Chetty Vs. S.R.M. Ramaswami Chetty reported in 1916 Vol. 35 page 1, observed that once the man's mind is free and clear and capable of disposing of his property then the way in which it is to be disposed rests with him. It is not for any Court to try and discover whether a Will could not have been made more consonant either with reason or with justice. In Smt. Jaswant Kaur Vs. Smt. Amrit Kaurand Ors. case reported in AIR 1977 SC 74 the Supreme Court after analysing a long line of decisions having bearing on the nature and standard of evidence required to prove a Will laid down guide-lines which were reiterated by this Court in the case of Rajindernath Sharma and Ors. Vs. Rani Chander Kanta & Ors. AIR 1982 Delhi 584 and can be summarised thus:-