OSA/32/2000 of MADAN LAL Vs ANIL BUTAIL on 29 December 2008

1. Whether reporters of Local papers may be allowed to see the judgment? Yes.

and it is the final amended pleadings which are being referred to. The parties are being referred to in the manner they are arrayed in the amended pleadings.

The plaintiffs alleged that the suit property belonged to Roshan Lal Butail, who died on December 4, 1984 leaving behind the plaintiffs and defendant No.1 as his legal representatives. According to the plaintiffs, Shri Roshan Lal died intestate though some Wills allegedly executed by him were stated to have been set up by the defendants. The plaintiffs alleged that the deceased suffered a severe attack of paralysis much prior to his death as a result of which the mental capabilities of the deceased were adversely affected rendering him incapable of executing any Will with a sound disposing and proper application of mind. It was also alleged that the deceased could not even speak. The immoveable properties have been detailed in the plaint which are mainly ancestral plots at Village Pragpur, Tehsil Dehra, District Kangra, ancestral property known as Block No.99/3, New Butail Building, Shimla, a three storeyed multi suite building and 2-1/2 storeyed building at Greater Kailash, Delhi, which was alleged to be self acquired property of the deceased.

It was further alleged that the deceased also possessed moveable property assets comprising cash, money lying in the banks, furniture etc. It was alleged that after the death of Roshan Lal Butail, the property devolved upon the plaintiffs and defendant No.1. Plaintiff No.1 was having 5/16[th] share in the joint family coparcenary property at Shimla and Pragpur and 1/4[th] share in the property at Delhi. It was further alleged that plaintiff No.2 was having 1/4[th]share in the suit properties and plaintiff No.3 was having 1/16[th] share in the ancestral joint family properties and 1/4[th] share in the immoveable property at Delhi. The plaintiffs further claimed to be in joint possession of the properties left by the deceased at the time of his death and they are in exclusive physical

possession of the top floor of the house in Delhi and a flat in the middle floor of Butail Building at Shimla. It was further alleged that since plaintiffs No.2 and 3 are permanently settled in United States of America and plaintiff No.1 had been in service as a teacher in a school at Halwara, defendant No.1 by taking undue advantage of the situation procured a power of attorney from the deceased Roshan Lal for realizing the rents of suit properties in 1984 and since then he had been realizing the rents of the suit properties, but he failed to render accounts to the plaintiffs. The plaintiffs alleged that since defendant No.1 had collected the substantial amounts and had failed to remit the same to the plaintiffs, the plaintiffs are entitled to rendition of accounts and plaintiff No.1 is further entitled to the Istridhan i.e. the gold ornaments lying in the lockers which are the exclusive property of plaintiff No.1.

Defendants contested the suit filed by the plaintiffs and on merits they denied that the plaintiffs are the legal heirs of the deceased. They also set up a Will said to have been duly executed by the deceased on 18.10.1984 in favour of defendant No.1 and his sons. The defendants also denied the allegation that the deceased was incapable of executing the Will due to his alleged illness or that he was not of sound disposing mind. It was pleaded that the deceased was married to Sheela Devi, mother of the defendant, in the year 1934. Smt.Sheela Devi died in 1942. Thereafter, Shri Roshan Lal Butail married plaintiff No.1 in the year 1945. Plaintiffs No.2 and 3 were admitted to be son and daughter of the deceased out of the wedlock with plaintiff No.1. It was further alleged that plaintiff No.1 deserted the deceased in the year 1965, but defendant No.1 continued serving the deceased in the absence of plaintiffs No.2 and 3, who were living abroad. It was further pleaded that plaintiff No.1 did not join the company of the deceased for the rest of his life and did not even visit him at the time of his death. It was pleaded that a Will was also executed by the deceased on 4.10.1984 at the instance of plaintiff No.2, but the same was revoked by the present Will, dated 18.10.1984, vide which the deceased bequeathed his properties in favour of the defendants.

It was further pleaded that as per the last Will so executed, the residential houses in Greater Kailash, Delhi devolved upon defendants No.2 and 3 and the New Butail Building at Lower Bazar, Shimla devolved upon defendant No.1. It was pleaded that since plaintiffs No.2 and 3 were permanently settled in United States of America, they were given six vacant residential plots at Pragpur. All moneys lying in the various banks have been given equally to the defendants after meeting the expenses of medical bills etc. Defendant No.1 also pleaded that he is the executor of the Will, who has been empowered to distribute the alleged share amongst the beneficiaries under the Will. It was also pleaded that a notice was sent by Dr. Kailash Nath Sood through counsel to plaintiff No.1 and defendant No.1 informing that he had in his possession a sealed envelope containing the Will of the deceased. The said envelope was handed over to plaintiff No.1 and plaintiff No.1 took a false stand that it was empty though it contained the Will, dated 18.10.1984, which is the last Will of the deceased. It was denied that the plaintiffs are in joint possession of the properties left by the deceased and it was also pleaded that the plaintiffs are not entitled to rendition of accounts. It was also pleaded that the ornaments, as claimed, were not stated to be in the lockers and, therefore, the plaintiffs are not entitled to any relief.

On the pleadings of the parties, the following issues were settled by the learned Single Judge:

1. Whether the properties in the suit are joint and ancestral properties qua the parties, as alleged in the plaint? OPP properties qua the parties, as alleged in the plaint? OPP

2. Whether the plaintiffs and defendants are in joint possession of the suit properties, as alleged and if so in what capacity? OPP of the suit properties, as alleged and if so in what capacity? OPP

3. Whether the plaintiff is entitled to a decree of partition and rendition of accounts, as prayed for, and if so, what are the shares of the parties in the suit property? OPP rendition of accounts, as prayed for, and if so, what are the shares of the parties in the suit property? OPP

4. Whether the defendant No.1 has collected the rents/profits of the suit property as alleged in the plaint and is liable to account for the same? OPP the suit property as alleged in the plaint and is liable to account for the same? OPP

5. Whether the ‘Istridhan’ of the plaintiff is in the locker of the deceased late Sh.Roshan Lal Butail or with the defendant No.1 as alleged? OPP deceased late Sh.Roshan Lal Butail or with the defendant No.1 as alleged? OPP

6. In case issue No.5 is proved in the affirmative, whether the plaintiff is entitled to a decree for mandatory injunction as prayed for by her? OPP plaintiff is entitled to a decree for mandatory injunction as prayed for by her? OPP

7. Whether late Sh.Roshan Lal executed a legal and valid Will on 18.10.1984 in favour of the defendant No.1 and his sons as alleged in the written statement ? OPD 1,4 & 5 18.10.1984 in favour of the defendant No.1 and his sons as alleged in the written statement ? OPD 1,4 & 5

8. Whether the suit in the present form is neither competent nor maintainable as alleged? OPD-1. maintainable as alleged? OPD-1.

9. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction and if so, what is the correct valuation thereof? OPD-1 purposes of court fees and jurisdiction and if so, what is the correct valuation thereof? OPD-1

10. Whether the plaint has not been verified in accordance with law as alleged? OPD-1 law as alleged? OPD-1

11. Whether the plaintiff is estopped from filing the present suit on account of her own acts, deeds, conduct and acquiescence etc. as alleged? OPD-1. on account of her own acts, deeds, conduct and acquiescence etc. as alleged? OPD-1. 12.Relief.

The following two additional issues were also settled by the learned Single Judge:

11-A Whether the plaint lacks material particulars and the averments in the plaint are mutually contradictory and destructive, as alleged. If so, its effect? OPD the plaint are mutually contradictory and destructive, as alleged. If so, its effect? OPD

11-B Whether the suit is barred by the principles of resjudicata, as alleged? OPD. alleged? OPD.

On conclusion of the trial, the learned Single Judge decided Issues No.1, 2, 3, 4, 7, 8, 9, 10, 11, 11-A and 11-B in favour of the plaintiffs and against the defendants. Issues No.5 and 6 were decided in favour of the defendants and against the plaintiffs.

We have heard the learned counsel for the parties and have gone through the record of the case.

The submissions made by the learned counsel for the appellants were that the Will in question was not surrounded by any suspicious circumstances and it was executed by the deceased in his sound disposing mind in favour of the defendants. It was also submitted that the learned Single Judge had considered every circumstance brought on record as suspicious which circumstances cannot be termed as suspicious circumstances and, therefore, the final findings recorded by the learned Single Judge holding that the Will in question was suspicious cannot be termed as correct. It was submitted that according to law, the Will was required to be attested by two attesting witnesses, who had attested the same and their identity was also proved on record. It was also submitted that according to law, only one attesting witness was required to be examined to prove the Will, who has been examined to prove the validity of the Will and as such, the Will stood legally proved. It was further submitted that the mere fact that the deceased had thumb marked the Will due to the paralytic attack suffered by him some time ago was not sufficient to prove that he was not in sound disposing mind and, therefore, the learned Single Judge had wrongly held that the Will was not proved to have been validly executed. The other points raised to support these submissions, during the course of arguments, shall be referred below while referring to the evidence led by the parties.

To substantiate his pleadings, the learned counsel for the appellants had placed relied upon the decision of the Apex Court in H.Venkatachala Iyengar

v. B.N. Thimmajamma and others, AIR 1959 Supreme Court 443. This is a detailed decision of the Apex Court in which their Lordships had considered the question as to how the Will is required to be proved, how the evidence is to be appreciated by the Court and what is the duty of the court in appreciating such evidence. It also lays down the law as to how the propounder of the Will is required to remove the suspicious circumstances surrounding the Will, if any. The observations made in paras 18, 19 and 22 of the said judgment are relevant which are reproduced as under:

“………………………………….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 prescribed 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.”

(Para 18)

“…………………………………..The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own 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, Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.”

(Para 19)

……………………………………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.”

(Para 22).

Reliance was also placed upon the decision in Savithri and others vs. Karthyayani Amma and others, (2007) 11 Supreme Court Cases 621. In that case, the question was of mental capacity of the testator, who was unwell at the time of execution and there was exclusion of natural heirs. The testator, a cancer patient, having no independent source of income, was totally dependent on respondents (i.e. his sister and her children). The role of sister’s family was emphasized as the parties were governed by Marumakkattayam School of Hindu Law. The testator disinherited his legal heirs and executed will in favour of the respondents. It was held that the testator was bound to place implicit faith and confidence only upon those who had been looking after him. The Apex Court held that the mere fact that the natural heirs were excluded or a lesser share was given to them, by itself without anything more, could not be held to be a suspicious circumstance. In that case, the testator lived seven years after the execution of the will and did not cancel it. This supported the validity of the will.

Further, reliance was also placed upon the decision in Rabindranath Mukherjee and another vs. Panchanan Banerjee (dead) by LRs. and others, (1995) 4 Supreme Court Cases 459, wherein the question was mainly pertaining to identification of testatrix before the Sub Registrar by an Advocate, which is not the case here.

The other decision cited by the learned counsel for the appellants was in Gurdev Kaur and others vs. Kaki and others, 2006 (4) Civil Court Cases 625 (S.C.). It was observed that if a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies. It was further observed that the court cannot decide the correctness of the testator’s decision. The role of the court is limited to examining whether the instrument propounded as the last Will of the deceased is or is not executed by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the Court looks into the nature of the bequest.

On the other hand, the learned counsel for the respondents had submitted that the statement made by one of the attesting witnesses examined is not reliable since DW-5 Ramakant Sachdeva was closely related to defendant No.1 and, therefore, his statement cannot be relied upon. The learned counsel for the respondents had referred to some infirmities in the deposition of this witness and other witnesses, which shall be referred here-in-after while referring to the evidence. It was submitted that the evidence of the defendants was not such which could prove the valid execution of the Will or the fact that the deceased was in sound disposing mind. It was submitted that there is nothing on record to show that who was the author of the Will, when the contents of the Will were disclosed to the person who typed the Will or that these were read over to the witnesses or the deceased by whom and whether the deceased admitted the contents as correct in presence of the attesting witnesses at any time.

To substantiate his submissions, the learned counsel for the respondents had placed reliance on the decision in Kalyan Singh vs. Chhoti and others, AIR 1990 Supreme Court 396. The observations made in para 20 of the said decision are relevant and are being reproduced below:

“A Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.”

The learned counsel for the respondents also placed reliance on the decision in Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another, AIR 1982 Supreme Court 133, in which it was held as under:

Conclusion

“The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator’s mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator’s mind was not free. In such a case 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. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances, the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a ‘suspicious’ circumstance. A circumstance would be ‘suspicious’ when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.”

In the light of the above case law and the submissions made by the learned counsel for the parties, it has to be considered as to whether the Will in question can be said to be legally proved or not, or as to whether the suspicious circumstances had been removed by the propounder of the Will or not. The question arises as to whether every circumstance can be considered a suspicious circumstance and, therefore, every circumstance has to be explained by the propounder of the Will.

Before we refer to the suspicious circumstances surrounding the Will, which have been referred to by the learned Single Judge in detail, we deem it necessary to refer to some of the facts of the case including the pleadings of the parties and the evidence led in this regard. The plaintiffs alleged that Shri Roshan Lal Butial died intestate, though some Wills are alleged to have been executed by him which are being set up by defendants since Roshan Lal was afflicted with a severe attack of paralysis much before of his death as a result of which his mental capabilities were adversely affected and he was incapable of making any Will with a sound and proper application of his mind. It was also alleged that he had even lost faculty of speech and could not and did not execute any alleged Will. The plaintiffs also alleged that the intentions of defendant No.1 have been to grab the entire property left by the deceased Roshan Lal and to oust the plaintiffs and her children (plaintiffs No.2 and 3) from the aforesaid joint properties. It was also alleged that defendant No.1 managed to procure in his favour general power of attorney from plaintiffs No.2 and 3 and by grossly abusing the said power of attorney collected substantial amounts and when plaintiff No.1 came to know of the real dishonest intentions of defendant No.1, plaintiffs No.2 and 3 cancelled the power of attorney executed in his favour by serving a notice on defendant No.1.

The defendants had pleaded that the deceased had executed a valid Will on 18.10.1984 and the property has devolved upon the defendants in accordance with the Will duly executed by the deceased on 18.10.1984. However, it was admitted by the defendant that the deceased had suffered an attack of paralysis much before his death but it was denied that his mental capacities were adversely affected or he was handicapped in making any Will with a sound and proper application of mind. It was also denied that the defeased had lost the faculty of speech and was pleaded that he was in sound disposing state of mind till the date of his death i.e. 4.12.1984. In written statement, a fact was also alleged by the defendants that on 8[th] July, 1985, a notice was got sent by one Dr.Kailash Nath Sood through Shri Ajay Kumar Sood, Advocate, to plaintiff No.1 and defendant No.1 informing that he had in his possession a sealed envelope containing Will of late Shri Roshan Lal. The said Dr.Kailash Nath Sood handed over the said envelope to plaintiff No.1. An application was moved by defendant No.1 and plaintiff No.1 took up a false stand in reply to the said application that when she got the envelope, she found it to be empty, which is false to her knowledge. It was pleaded that the plaintiff fully knew that a valid Will was executed on 18.10.1984, which was set up by the defendants. She had avoided deliberately to produce the Will of the deceased. Some evidence was led by the parties in this regard when Dr. Kailash Nath Sood appeared as DW-1, who stated about the envelope and the notice. Defendant No.1 had replied that he was nowhere interested with the Will and after referring to the evidence in this regard, the learned Single Judge had concluded that this matter is required to be kept in view while appreciating the evidence. In our view, no benefit can be taken by either of the parties in regard to these pleadings since in fact no Will was ever produced on record allegedly executed by the deceased and once no such Will saw the light of the day, it does not further substantiate the case of the plaintiff or demolish the case of the defendant who have set up a Will having been executed in their favour. Therefore, this part of the pleadings and evidence, to our mind, is not very relevant.

To substantiate her assertions, plaintiff No.1 had stepped into the witness box as PW-1 and stated the facts as alleged in the plaint. In her statement in rebuttal, the plaintiff has stated that her husband late Shri Roshan Lal remained admitted in Jiwan Hospital in 1984 for about 2-1/2 months.

Thereafter, he was brought home for few days and then in July, 1984 he was again admitted in the same hospital from where he was shifted to Holly Family Hospital from where he was discharged on 5[th] October, 1984. He was brought home and later on was readmitted in Sen Nursing Home on 20[th] October, 1984, where he died. She stated that she remained at Delhi till 12[th] October, 1984 and her husband was unable to speak. Her this statement has not been substantiated from any record produced from any of the Hospitals, which could prove since when the deceased Roshan Lal remained admitted in the hospital, when he was discharged and her statement made in rebuttal has not been substantiated by any documentary evidence.

The learned Single Judge has referred to 7 circumstances and after referring to the evidence, it was concluded that 6 circumstances can be termed as suspicious. We will make a brief reference to the circumstances held by the learned Single Judge as suspicious and the evidence referred therein.

Coming to the circumstance No.(i), the learned Single Judge had observed that the deceased was literate and therefore, was capable of signing the documents. A perusal of the statement of DW-6 Madan Lal Butail shows that he had stated that his father had been signing papers till November/December 1983 only and thereafter he did not sign any papers/documents and had been thumb marking the same. The learned Single Judge had also referred to the documents Ext.PW-3/B, Ext.PW-3/C, Ext.PW-5/B, dated 22.5.1984, 3.7.1984 and 2.4.1984 respectively, relied upon and proved by the plaintiffs which are signed by the deceased. We may reproduce below the relevant observations made by the learned Single Judge on this circumstance:

“This explanation is belied not only by the evidence led by the plaintiffs but also by the defendants’ evidence on record. There is no dispute that the documents Exs.PW-3/B, PW-3/C and PW-5/B respectively dated 22.5.1984, 3.7.1984 and plaintiffs but also by the defendants’ evidence on record. There is no dispute that the documents Exs.PW-3/B, PW-3/C and PW-5/B respectively dated 22.5.1984, 3.7.1984 and 2.4.1984 relied upon and proved by the plaintiffs are signed by the deceased. Similarly, the documents Exs.DW-5/A, DW-2/A and Mark ‘B’ respectively dated 16.4.1984, 16.4.1984 and 25.5.1984 relied upon and produced by the defendants themselves are admittedly signed by the deceased. The dates of execution/signing of these documents by the deceased fully prove that he could sing the papers and documents even after November/December 1983. Thus the explanation given for the defendants is incorrect.”

The fact that the deceased had been signing the documents in the year 1984 also clearly proves that he used to sign and there was no reason for him to have thumb marked the Will until and unless there was evidence to show that prior to the date of the execution of the Will, the deceased was not in a position to sign the papers due to paralytic attack suffered by him a few years ago. It was for the defendants to have proved either from his own statement or from the medical evidence that prior to the date of signing of the Will, the deceased had become incapable of signing any document and, therefore, he had thumb marked the Will in which the defendant had failed. Therefore, it is one of the strong suspicious circumstance that the Will was suspicious.

Coming to circumstance No.(ii), the learned Single Judge had observed that the Will Ext.DW-5/A and the special power of attorney came into existence on the same date and Mr.Ajit Ahuja, Advocate, is a common witness to these two documents. According to DW-6 Madan Lal BUtial, he came in possession of the special power of attorney which was delivered to him by the deceased, but surprisingly the Will was not handed over to him, which was also executed on the same date. We are not referring to the contents of the document i.e. special power of attorney but since this document was produced by the defendant himself, a reference is being made only to this effect and the date mentioned therein.

In regard to the Will, defendant No.1 while appearing as DW-6 had come up with the plea that he accidentally found the Will, but he did not mention the month, date or the probable time when after the death of his father he came in possession of this document. However, in the written statement filed by him, he had pleaded that he came in possession of the Will in the month of April/May, 1985. However, prior to this, he had already filed an application in two of the cases pending in the courts at Shimla in which he had filed the application to bring on record himself as well as plaintiffs No.2 and 3 as legal representatives of the deceased, which applications were filed by him on 26.2.1985, as discussed in detail by the learned Single Judge under circumstance No.(iv). We are not inclined to accept the explanation given by him that he signed blank papers and handed over the same to his counsel, who, due to some confusion, filed the application on his behalf and on behalf of other heirs which mistake was later on corrected by him. It may be true that he had signed the blank papers and handed over the same to his counsel, but the counsel cannot mention the names of the legal representatives of his own and he has to mention the names as instructed by his client, which clearly shows that till that date, the Will in question had never seen the light of the day and accordingly he had prayed that he alongwith other heirs be brought on record as legal representatives of the deceased, though for the reasons best known to him, he did not mention the name of the widow of the deceased i.e. plaintiff No.1 as the legal representative of the deceased.

The statement of DW-6 Madan Lal cannot be believed that he is not even aware of the approximate date when he found the Will after the death of his father and surprisingly he did not inform defendants No.2 and 3 also or the plaintiffs in writing about the Will having been found by him. The learned Single Judge had also rightly observed under circumstance No.(iv) that he had not produced his counsel to prove that these applications were presented by them out of their own accord and the details regarding the homes and addresses of the legal representatives were not told to them by the defendant. His remaining silent for such a long time till April/May 1985 i.e. about 6-8 months after the execution of the Will was also rightly held to be suspicious circumstances under circumstance No.(iv). The learned Single Judge had rightly held circumstances No.(iii) and (v) as not suspicious and we need not refer to the evidence in that regard.

Under circumstance No.(vi), it was observed by the learned Single Judge that there is no explanation as to how the deceased could have executed the Will at his residence on 18.10.1984 when he, admittedly, was admitted in the hospitals prior to those dates. We may make a reference to the statement of DW-6 Madan Lal Butail defendant No.1, who, in his statement, has stated that his father suffered the first paralysis attack in between 1971-72. He further stated that his father went to Kothi in Greater Kailash in 1980-81. He also stated that it is correct that in September 1984, his father was admitted in Jeevan Nursing Home, Delhi. He further stated that his father was shifted to Holly Family also after 2-3 months from Jeevan Nursing Home. In case the deceased had been shifted from Jeevan Nursing Home to Holly Family after 2-3 months of his admission in September, 1984, it clearly shows that either the deceased was admitted in Jeevan Nursing Home or in Holly Family Hospital, when the Will in question was alleged to have been executed on 18.10.1984. There is no other evidence on record produced from either of the Hospitals or any Medical Officer examined who was treating the deceased who could prove if the deceased was admitted in the Hospital at any time on or around 18.10.1984. In the alternative, the defendants should have examined any medical officer who was treating the deceased around the time when he is alleged to have executed the Will who could prove about the mental and physical condition of the deceased and as to whether he was admitted in the Hospital or he was at the residence on the relevant date. The solitary statement of the defendant himself that the deceased was in these two hospitals during the relevant period was sufficient to prove that the deceased was not at his residence when he is alleged to have executed the Will. In our view, when the deceased was admitted in the hospitals and has been a paralytic patient for the last about 14 years, it was necessary to have examined some medical officer, who was treating the deceased who could prove the condition of the deceased at that time.

Therefore, in our view, the learned Single Judge had rightly held circumstance No.(vi) as suspicious circumstance, which was a strong suspicious circumstance which makes the execution of the Will on that day at the instance of the deceased as doubtful.

Coming to circumstance No.(vii), the learned Single Judge had rightly referred to the testimony of DW-5 Ramakant Sachdeva, the attesting witness of the Will, and DW-6 Madan Lal Butail defendant No.1 and had rightly concluded that they had not denied the suggestions in regard to their relationship with the defendants and keeping in view the evasive replies given by them in regard to relationship, the learned Single Judge had rightly held that the statement of the attesting witness and the defendant cannot be relied upon in view of their testimonies. This clearly suggests that DW-5 Ramakant Sachdeva was either not present at that time or his presence was procured subsequently and he had intentionally denied the specific questions put to him in regard to his relationship with the defendant. It was rightly observed by the learned Single Judge that it

Issues

looks surprising that DW-5 was not knowing about his in-laws and it also looks surprising that in spite of the close relationship of the deceased with the father of this witness, he did not attend the last rites or the other ceremonies connected with the death of the deceased.

The learned Single Judge had referred to the evidence in detail and held the above circumstances as suspicious and we find no reason to differ with the reasoning given by the learned Single Judge after referring to the evidence in detail.

To sum up, the defendants have failed to prove that the deceased was incapable of signing on the date of the execution of the Will. The defendants have also failed to prove that the deceased was not admitted in the hospital and was at his residence on the date of the execution of the Will. The defendants have failed to examine any medical officer to prove the mental and physical condition of the deceased and the person associated i.e. DW-5 Ramakant Sachdeva cannot be said to be disinterested person. Apart from this, one of the other circumstance, which, in our opinion, can also be termed as suspicious is that there is nothing on record to prove as to who was the scribe of the Will, who furnished the details about the legal representatives or the properties of the deceased and as to whether the deceased was in a fit condition of mind to get the Will scribed by giving the details of the properties or his legal representatives or the manner of distribution of the properties. The statement of DW-5 also does not prove the due execution of the Will as to whether the Will was duly read over to the deceased in presence of the witnesses or the deceased signed the Will in presence of the witnesses after knowing the contents of the Will or the witnesses also signed the Will in presence of the deceased after it was read over to them.

In view of the above detailed discussion, we accordingly hold that the findings recorded under issue No.7 by the learned Single Judge holding that the Will is surrounded by the suspicious circumstances, which have not been removed, are based upon correct appreciation of evidence and law.

The learned counsel for the appellants had challenged the findings under other issues also which have been held against the appellants/defendants submitting that these findings are not based upon correct appreciation of evidence and law.

Coming to the findings in regard to Issue No.1, it was submitted that the learned Single Judge has failed to appreciate that there was no coparcenary property between the parties. The mere fact that the deceased had inherited some property from his father is not sufficient to hold that it was a coparcenary property. It was submitted that the property situated at Paragpur and Shimla were ancestral in nature, but the learned Single Judge had erred in holding that they constitute a joint Hindu family. Thus, it was submitted that the findings under issue No.1 are liable to be set aside.

Issue No.1 pertains to the question as to the properties in the suit are joint and ancestral properties qua the parties. Plaintiff had examined PW-2 Shri Satish Butail, who had brought two partition deeds, one pertaining to the partition effected between the grand father on one side and his father and Shri Roshan Lal, deceased, on the other side. The original partition deeds were produced and their true copies Ext.PW-2/A and Ext.PW-2/B were allowed to be placed on record and objections in regard to mode of proof were rejected since these documents were more than 55 years old. He stated that these documents were in the custody of his late father and after his death, they have come into his possession and, therefore, they were read in evidence. It is in evidence that

defendant No.1 as DW-6 Madan Lal Butail has stated in his statement that the property situated in Shimla and at Pragpur were not self acquired properties of his father. He inherited these properties from his grand father. Accordingly, learned Single Judge had come to a right conclusion that the properties at Shimla and Pragpur were ancestral properties in the hands of the deceased. However, these cannot be termed as coparcenary properties or joint family coparcenary properties since there is nothing on the record to establish any jointness in between the deceased and the legal representatives. It has been rightly observed by the learned Single Judge also that the house at Delhi was the self acquired property of the deceased, as not disputed by either of the parties and accordingly, the findings of the learned Single Judge under issue No.1 are liable to be upheld only to this extent that the properties at Pragpur and Shimla were ancestral properties, while the property at Delhi was self acquired property, but this cannot be held as joint ancestral properties, as held by the learned Single Judge. The findings under issue No.1 are partly amended accordingly.

Coming to the findings under issue No.2, which were also challenged by the learned counsel for the appellants on the ground that the learned Single Judge had wrongly considered these properties as coparcenary properties or joint Hindu family properties. This fact also cannot be lost sight of that the plaintiff had filed the suit without impleading the grand sons of the deceased, namely son of plaintiff No.2, as parties to the suit in case the plaintiffs admitted that it was a coparcenary property. There is no specific evidence on record regarding the name of the grand son except a reference in the Will, which leads to the inference that the plaintiffs did not consider these properties as coparcenary properties or joint Hindu Family properties and accordingly, had not impleaded the male descendants as a party to the suit. We are not inclined to hold that the plaint should be amended and plaintiffs should be permitted to add grand son of the deceased as a party in view of the fact that the plaintiffs had failed to prove that it was a coparcenary property or joint Hindu Family property and the grand son was also required to be impleaded as a party.

The learned Single Judge under issue No.2 had observed that the property in suit has already been held to be joint Hindu family property though the word ‘joint’ was only used in the final findings recorded under Issue No.1, which have been held by us, as above, to be incorrect. There is no jointness proved interse the parties and it cannot be said that the parties constitute a joint Hindu family. There is no proof of common mess, common business etc. on record and accordingly, we are not in agreement with the findings recorded by the learned Single Judge that the parties were in joint possession of the suit property as members of an undivided joint Hindu family. It is in evidence that plaintiffs No.2 and 3 have been living abroad while plaintiff No.1, his wife, had been living separately in service and, therefore, they cannot be said to be in joint possession of the suit properties except that these can be held to be in possession of the deceased prior to his death and after his death his LRs are entitled to succeed to them according to their share. The mere fact that defendant No.1 may be receiving the rents or managing the properties in the absence of plaintiffs does not lead to the inference that he was also in possession of these properties exclusively or as member of joint Hindu family and, therefore, he can be held to be entitled to the possession alongwith other heirs in accordance with their shares. Accordingly, we are inclined to hold that the plaintiffs and defendant No.1 are in joint possession of thesuit properties as legal heirs of the deceased and not as members of undivided joint Hindu family, as held by the learned Single Judge and those findings are liable to be corrected accordingly.

Coming to the findings under issue No.4, it is in evidence that defendant No.1 had been collecting the rent/profits of the suit property even during the life time of the deceased since other legal heirs were living abroad, it has been rightly held by the learned Single Judge that defendant No.1 is liable to render such accounts for the period after the death of the deceased and not prior to that. The findings under issue No.4 are accordingly affirmed.

Coming to the findings under issue No.3, plaintiff No.1 being the widow of the deceased, plaintiffs No.2 and 3 being the son and daughter of the deceased from plaintiff No.1 and defendant No.1 being also the son of the deceased from other wife, are entitled to inherit one share each and they being class-I heirs, as such they shall be entitled to their shares accordingly. The findings recorded under issue No.3 are liable to be corrected, which are corrected accordingly.

Coming to the findings under issue No.5, the learned Single Judge has rightly held that plaintiff No.1 only presupposes that her Ishtridhan is lying in the locker which was not specified by her. It is in the evidence, as also discussed by the learned Single Judge, that the plaintiff No.1 had been residing away at the place of her service and at other places, therefore, it cannot be said that all the jewellery or Ishtridhan belonging to her are lying in locker, which is only a supposition. Therefore, we affirm the findings of the learned Single Judge under issue No.5 that the plaintiff had failed to prove that the Ishtridhan of the plaintiff is in the locker of the deceased or that defendant No.1.

The findings recorded under issue No.6 are affirmed, apart from the findings under issue No.8, 9, 10, 11, 11-A and 11-B since those findings were not challenged to be wrong and the reasoning given by the learned Single Judge appears to be correct.

Relief:

Therefore, it follows from the above discussion that the plaintiffs and defendant No.1 shall be entitled to the suit property in equal shares as class-I heirs under the Hindu Succession Act. They are also entitled to a preliminary decree for rendition of accounts, as granted by the learned Single Judge under relief ‘(B)’.

In view of above, the appeal filed by the appellants is partly accepted to this extent that the findings holding that the Will in question was suspicious are liable to be affirmed and some of the findings have been modified, as detailed above. The appeal is partly allowed accordingly. The parties are left to bear their own costs.

(Deepak Gupta), Judge.

December 29, 2008.(TILAK)

(V.K. Ahuja), Judge.