KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.

B The Judgment of the Court was delivered by DINESH MAHESHWARI, J. INTRODUCTION WITH BRIEF OUTLINE

1Copy pinpoint1. This appeal by special leave is directed against the judgment and order dated 27.06.2014 in FAO No. 36 of 2010, whereby the High Court of Delhi at New Delhi has dismissed the appeal preferred by the present appellant and has affirmed the judgment and order dated 23.11.2009 as passed by the Additional District Judge, West District, Tis Hazari Courts, Delhi in Probate Case No. 465 of 2006, resulting in rejection of the appellant’s prayer for grant of probate in relation to the Will dated 20.05.2003, said to have been executed by the mother of the contesting parties1.

2Copy pinpoint2. The prayer of the appellant for grant of probate in relation to the Will in question has been declined concurrently by the Trial Court and by the High Court essentially after finding several unexplained suspicious circumstances surrounding the Will in question. Being aggrieved, the petitioner-appellant, who was appointed as the executor of the Will in question and who was, admittedly, the major beneficiary thereunder, has preferred this appeal while maintaining that execution of Will by the testatrix with due compliance of all the requirements of law has been clearly established on record and there has not been any such suspicious circumstance which might operate against the genuineness of the Will in question.

3Copy pinpoint3. Therefore, essentially the point for determination in this appeal is as to whether the Trial Court and the High Court were justified in declining to grant probate in relation to the Will dated 20.05.2003 as prayed for.

1 Hereinafter also referred to as ‘the contested Will’ or ‘the Will in question’ or the H ‘document in question’.

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 367 [DINESH MAHESHWARI, J.]

THE PARTIES AND THE WITNESSES A

4Copy pinpoint4. For comprehension of the subject-matter and for effective determination of the questions raised in this appeal, we may take note of the principal parties and the witnesses involved in the matter with their respective roles as infra: 4.1. The testatrix: B

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A He is the son of the testatrix. By way of bequeath in the Will in question, he has been given ‘credit balance’ lying in the bank accounts of the testatrix but with clarification that he shall not inherit any portion of the immovable assets of testatrix. He had filed the written statement and has consistently contested the claim for probate of the Will in B question. 4.5. The attesting witnesses: PW-2: Shri. Urvinder Singh Kohli, who is said to be a friend of the appellant and his daughter got married to the son of C a cousin of the appellant; and PW-3: Major General Manjit Ahluwalia, who is son of the sister of testatrix. THE IMMOVABLE PROPERTY INVOLVED: ANNALS AND DESCRIPTION

5Copy pinpoint5. We may also notice at the outset that the immovable property, D a part whereof forms the subject of bequeath and which is the major bone of contention in this case, has its own chronicle of different transfers as per the desire of its original owner, father of the contesting parties. For comprehension of the relevant factual aspects as also salient features of this case, it is equally necessary to take note of the description of immovable property in question as also the past dealings in relation thereto. 5.1. The property in question is identified as bearing number D-179, Defence Colony, New Delhi admeasuring 325 square yards and comprising of a building having ground floor, first floor, terrace and annexe block of garage and servant quarter. The whole property originally belonged to Lt. Col. (Rtd.) D. S. Mamik, father of the contesting parties who, in his lifetime, gifted the ground floor of this property to the appellant by way of a registered Gift Deed dated 25.01.2001; and thereafter, he bequeathed the remaining portion/s, that is, the first floor, terrace and the annexe block of garage and servant quarter in favour of his wife Smt. Amarjeet Mamik through a registered Will dated 14.02.2001. Lt. G Col. (Rtd.) D. S. Mamik expired on 20.10.2002. Hence, after his demise, Smt. Amarjeet Mamik, mother of the contesting parties, became owner of the first floor and other portions of the said property except the ground floor. 5.2. It is also noteworthy that at the time of execution of the contested Will dated 20.05.2003, the testatrix Smt. Amarjeet Mamik was

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residing at the ground floor of this property (which had otherwise been gifted to the appellant by her father). The first floor of this property (which had otherwise been bequeathed to the testatrix by her husband) has remained in occupation of respondent No. 1, the widowed daughter of the testatrix. THE WILL IN QUESTION B

6Copy pinpoint6. The contested Will dated 20.05.2003 has been placed on record as Ex. PW1/H. A vast variety of features related with this Will form the subject of dispute in this case. The Trial Court and the High Court have also analysed and taken into account several of the suspicious circumstances surrounding this Will and the long length of arguments of C the learned counsel for the contesting parties in this appeal have also revolved around this Will. Having regard to the questions involved, it would be apposite to take note of the features and attributes of the contested Will to appreciate the stand of the contesting parties as also the findings in the impugned judgments. D 6.1. The contested Will is drawn up in two pages. It is a partly holograph document in the manner that its opening and concluding passages/clauses are handwritten whereas the other paragraphs/clauses are of electronic print. This Will is said to have been executed on 20.05.2003 by Smt. Amarjeet Mamik while residing on the ground floor of the property in question at D-179, Defence Colony, New Delhi in the E presence of the attesting witnesses and the appellant.

7Copy pinpoint7. The Will in question reads as under: - “WILL I Amarjit Mamik aged 77 years w/o Lt. Col. (Retd) D.S. F MAMIK r/o Ground floor D. 179, Defence Colony New Dlhi – 110024 c/o hereby make This my will and testament on This 20 day of May 2003 at New Delhi.

1. WHEREAS I was married to Lt. Col. (Rtd.) D.S. Mamik from which union the following children were born: G

1. Mrs. Pamela Mehta - Daughter, aged 60 years

2. Col. (Rtd.) Prithivijit Mamik - Son, aged 57 years

3. Mrs. Kavita Kanwar - Daughter, aged 50 years H

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A 2. AND WHEREAS my said husband was the owner of the said building bearing No. D-179, Defence Colony, New Delhi – 110024, constructed on a plot of land admeasuring 325 sq. yds. and comprising of a ground floor, first floor, terrace thereon and the annexe block of garage and servant quarters thereon.

B 3. AND WHEREAS during his life time my said husband had executed a duly registered Gift Deed dated 25.1.2001 in respect of the ground floor of the said building in favour of my aforementioned youngest daughter Mrs. Kavita Kanwar who has after the execution of the said Gift Deed granted a licence to use the same floor for my residential purposes out of natural love and affection.

4. AND WHEREAS my said husband has vide Will dated 14.2.2001, validly executed and duly registered, bequeathed to me the first floor, the terrace thereon and all other portions of the said building, hereinafter referred to as the property, save and except the said ground floor of the same building. I am in my full senses and disposing mind and I fully understand what is right and wrong. I am on my own accord voluntary, without any force, pressure, coercion or influence of any kind am making this Will in order to direct as to the manner of the inheritance of my aforementioned assets upon my demise. I hereby and hereunder revoke any wills or codicils that I may have made in the past.

1. I hereby give, devise and bequeath to my youngest daughter the said Mrs. Kavita Kanwar my entire share in the aforementioned immovable property, namely the first floor and the terrace including all other portions, save and except the ground floor with specific directions that my said daughter Mrs. Kavita Kanwar will carry out either of the 2 options as deemed proper by her, namely G (a) construct on the terrace of the said building such residential facility of such covered area as is permissible under the Municipal Building Bye-laws at the time of my demise and hand over possession of the same construction to my elder daughter, namely Mrs. Pamela Mehta, who shall thereafter H acquire sole exclusive title to the said portion with the terrace

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rights thereon continuing to vest in favour of the said Mrs. A Kavita Kanwar, OR (b) demolish the said building and carry out such new construction as is permissible under the Municipal Building B Bye-laws and be the sole exclusive owner of the entire building thus constructed, save and except such constructed residential portion on the highest floor of such building, which portion shall vest solely and exclusively in favour of my said elder daughter Mrs. Pamela Mehta, while the terrace rights thereon shall continue to vest in favour of my said daughter Mrs. C Kavita Kanwar.

2. I also direct that in the event of my acquiring any further movable or immovable assets hereinafter or any other assets that I may have forgotten to mention in the present Will the same shall devolve upon my daughter Mrs. Kavita Kanwar. D

3. I hereby give, devise and bequeath to my son, Col. Prithivijit Mamik, the credit balance lying in my Bank Accounts. I however, clarify that my said son shall not inherit any portion of my aforementioned immovable assets.

4. I hereby appoint my said daughter Mrs. Kavita Kanwar as the E Executor of my Will. In witness whereof, I Amarjit Mamik have set and subscribed my hand to this my last will as also to each of the 2 pages that comprise it having understood the contents thereof and endorsing thereby and giving my approval to the bequest made F therein. I fully endorse the manner in which my assets shall devolve as stated hereinabove in my will made out in 2 pages. Each of which page has been signed by me. G Amarjeet Mamik Testator Signed by the Testator in the presence of the witnesses and the witnesses have (Sd/-) signed in the presence of the Testator H

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A Witness No. 1: (Sd/-) Maj Gen Manjit Ahluwalia D-34 Defence Colony 20 May 2003 Witness No. 2: (Sd/-) B (Sd/-) 20/5/03 Urvinder S. Kohli S/o S. Navinder S. Kohli 227 Jor Bagh N. Delhi” (Note: The bold italicised portions are in the handwriting of the testatrix whereas unbold italicised portions are in the handwriting C of the respective witnesses. All other contents are of electronic print) SUMMARY OF PLEADINGS, ISSUES AND EVIDENCE AS ALSO THE RELEVANT PART OF PROCEEDINGS IN THE TRIAL COURT D

8Copy pinpoint8. Having taken note of the particulars of the parties and the property involved as also the contents of the Will in question, we may now summarise the pleadings of the parties, the issues framed by the Trial Court, the material aspects of evidence led by the parties and the relevant part of the proceedings in the Trial Court, which have bearing E on the questions involved herein. 8.1. Briefly put, the petition leading to this appeal was filed by the appellant on 06.11.2006 in the Court of District Judge at Delhi under Section 276 of the Indian Succession Act, 19254 for grant of probate of the Will in question, said to have been executed by her mother Smt. F Amarjeet Mamik while arraying the State (N.C.T., Delhi) as the party respondent. Thereafter, by filing amended memo of parties, the present respondent Nos. 1 and 2 were arrayed as respondent Nos. 2 and 3 respectively. The appellant stated the facts relating to the children of the testatrix as also the said gift of the ground floor made by the father in her favour and then, asserted in the petition that by the Will in question, G the testatrix had bequeathed the first floor and other portions except the ground floor of the said property at No. D-179, Defence Colony, New Delhi in her favour with directions to carry out one of the two options, i.e., either to construct on the terrace of the first floor of the said property 4 Hereinafter also referred to as ‘the Succession Act’. H

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or to demolish the said building and to re-construct and give the highest floor of the said building to Mrs. Pamela Mehta (other daughter of testatrix) while retaining the terrace rights thereon; and had bequeathed the balance in her savings bank account maintained with Central Bank of India in favour of her son Col. (Rtd.) Prithivijit Mamik. While stating that the Will in question was duly executed in the presence of the aforesaid two witnesses and that the testatrix expired on 21.05.2006, the appellant asserted that she was the executor and beneficiary of the Will in question and was entitled to seek its probate. 8.2. For their relevance, we may usefully take note of the material contents of the said petition as also those of Schedule A and Schedule B attached to the petition, giving out respectively the particulars of the natural heirs of the deceased Smt. Amarjeet Mamik and a list of assets of the deceased as under:- “ *** *** ***

4. That the “WILL” dated 20.05.2003 was duly executed by D Smt. Amarjeet Mamik in the presence of two witnesses namely Major Gen. Manjit Ahluwalia r/o D-34, Defence Colony, New Delhi and Sh. Urvinder S.Kohli s/o S.Narinder S.Kohli r/o 227 Jor Bagh, New Delhi-110003.

5. That the deceased was the owner of first floor, the terrace E thereon and all other portions of premises no. D-179, Defence Colony, New Delhi-110024, save and except the ground floor of the said building, as mentioned in the will and the said property, is likely to come to the hands of the petitioner and her sister namely Mrs. Pamela Mehta as per the “WILL”. F

6. That the husband of the deceased was the owner of property bearing no. D-179, Defence Colony, New Delhi-110024 constructed on a plot of land measuring 325 square yards and comprising of a ground floor, first floor, terrace thereon and an annexe block of garage and servant quarters thereon. G

7. That during his lifetime the husband of the deceased had executed a duly registered gift deed dated 25.01.2001 in respect of the ground floor of the said building in favour of his youngest daughter i.e. Smt. Kavita Kanwar.

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A 8. That the husband of the deceased vide ‘Registered Will’ dated 14.02.2001 bequeathed to the deceased the first floor, the terrace thereon and all other portions of the said building to the deceased, save and except the ground floor.

9Copy pinpoint9. That Smt. Amarjeet Mamik died on 21.05.2006 at Delhi within B the jurisdiction of this Court.

10Copy pinpoint10. That the deceased Smt. Amarjeet Mamik was a Hindu by religion and she left behind, besides the petitioner the following relatives/legal heirs : (i) Mrs. Pamela Mehta Daughter C (ii) Col. (Rtd.) Prithvijit Mamik Son The complete addresses of the above heirs are given in the annexures marked as schedule ‘A’ attached with this petition. Except the above legal representatives there is no legal heir of the first class as mentioned in the Hindu Succession Act. D

11Copy pinpoint11. That the petitioner is one of the beneficiaries of the “WILL” dated 20.05.2003 and the petitioner is also the executor of the said “WILL”. The immoveable property which is likely to come to the hands of the petitioner is having the worth of about Rs. 18 Lakhs. E

12Copy pinpoint12. That the assets which are likely to come in the hands of the petitioner are the first floor and other portions of the property no. D-179, Defence Colony, New Delhi-110024 save and except the ground floor of the building and to carry out the two options of constructing either on the terrace of the first F floor of the said building or to demolish the said building and to re-construct and give highest floor of the said building to Mrs. Pamela Mehta and retaining the terrace rights there on.

13Copy pinpoint13. That the balance in the Savings Bank account No. 1001020597 maintained with the Central Bank of India, Defence Colony, G New Delhi as mentioned in the Schedule-B attached to the petition will go to Col. (Rtd.) Prithivijit Mamik and the petitioner does not claim the same. *** *** ***

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 375 [DINESH MAHESHWARI, J.]

SCHEDULE A A Name and Addresses of the L.Rs of the deceased Smt. Amarjeet Mamik S. No. Name Relationship Address

1. Mrs. Pamela Mehta Daughter D-179,Defence B Colony, New Delhi-110024.

2. Co. (Rtd.) Prithvijit Son Madhuban Gian Mamik Vatika, Khalini, Shimla(H.P.) C

3. Mrs. Kavita Kanwar Daughter S-45, Panchshila Park, New Delhi-3 *** *** *** D SCHEDULE B IMMOVEABLE PROPERTY: First floor, the terrace thereon and all other portions of premises no. D-179, Defence Colony, New Delhi-110024, save and except E the ground floor of the said building. MOVEABLE ASSETS:

1. Balance in Savings Account No. 1001020597 maintained with Central Bank of India, F Defence Colony, New Delhi. Rs. 577389.00" *** *** ***”

9. The said petition seeking probate was eventually transferred to the Court of Additional District Judge, Delhi for consideration. After requisite publication and due notice, the respondents put in appearance G but, on 18.04.2007, it was given out on behalf of the present respondent No. 1 that she did not wish to file objections to the petition. However, the objections with documents were indeed filed on behalf of the present respondent No. 2, who refuted the claim of the appellant and contended, inter alia, that the Will in question was forged and fabricated, where the H

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A appellant was the major beneficiary as also the executor; that there was no reason for exclusion of the respondents and grandchildren from the legacy; and that the property in question being an ancestral property, belongs to all the legal heirs of late Shri D.S. Mamik. The replying respondent maintained that there existed no dispute between testatrix and himself and there was no reason for the mother to have excluded B him from the Will. He also contended that the property bequeathed in favour of the appellant was worth crores of rupees and hence, it was impossible to comprehend that his mother had left him merely a sum of Rs. 5,77,389/- when the relations between him and his mother were cordial.

C 10. The Trial Court framed the following issues for determination of the questions involved in the matter: - “1. Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik is proper and valid? OPP

D 2. Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik is forged and fabricated? OPR-3

3. Whether the petitioner is entitled to the grant of Probate/Letter of Administration in respect of Will dated 20-5-2003 of Smt. Amarjeet Mamik? OPP

E 4. Relief”

11. In evidence, the appellant examined herself as PW-1; and the two attesting witnesses of the contested Will, Shri Urvinder Singh Kohli and Major General Manjit Ahluwalia as PW-2 and PW-3 respectively. Shri Nikhil Kanwar, son of the appellant, was also examined as PW-4. F In documentary evidence, the Will in question was marked as Ex. PW1/H. 11.1. It had been the consistent case of the appellant that she had no prior knowledge that the Will was being executed on the given day and that it was the testatrix who invited the appellant to her residence. G The appellant asserted in her evidence that only after reaching her mother’s house on the given day, it came to her knowledge that her mother was executing a Will. She further stated that she was not aware of the contents of the Will. It had also been the assertion of the appellant that her parents had special love and affection for her and that had been the reason for them having gifted and bequeathed the said property to H

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her only. The appellant also stated in the cross-examination: (i) that she did not know the educational qualification of the testatrix but she (testatrix) knew how to read and write in English; (ii) that she and the testatrix were not residing together for the last 20-22 years; (iii) that the testatrix neither discussed the contents of the Will with her nor mentioned as to who had drawn and typed the Will in question; (iv) that she came to know about the existence of the Will on 20-21 May, 2003; (v) that her mother had not called respondent Nos. 1 and 2 on the day of execution of the Will; (vi) that respondent No. 1 was living on the floor above the testatrix and was looking after the testatrix, who was suffering from cancer; (vii) that the testatrix had called the attesting witnesses; (viii) that she did not know when the testatrix discussed the Will with the respondents; (ix) that the testatrix had discussed the contents of the Will with the attesting witnesses (x) that she remembered the testatrix writing something but was not sure whether it was on the Will or something else5; and (xi) that the relations of the testatrix and the respondent No. 2 were strained. D 11.2. PW-2 and PW-3, the attesting witnesses, both specifically deposed that on their arrival at the house of Smt. Amarjeet Mamik, they found that the appellant was already present there; that the testatrix wrote something on the Will in their presence before signing it; and that they were unaware of the contents of the Will as the same was not discussed with them. PW-2 also maintained that on 18.05.2003, the appellant had called him to the house of her mother on 20.05.2003. On the other hand, PW-3 deposed that it was the testatrix who invited him to her house that day; that he was having good relations with the appellant and the respondents; that the testatrix was having good relations with respondent No. 2 and also that when Smt. Amarjeet Mamik wrote something on the Will, she copied it from a draft which she had with her.

12. In opposition, the contesting respondents deposed as R2W-1 and R3W-1 respectively.Shri Ram Gopal Meena from the Post Office, Defence Colony was examined as R3W-2; Shri S.P. Sharma from State Bank of India as R3W-3; Shri R.S. Negi from Defence Colony Association G Club as R3W-4; and Shri S.P. Khamra from Central Bank of India was examined as R3W-5. Several documents produced by the respondents like family photographs, birthday card sent by testatrix to respondent 5 Though in the affidavit-in-evidence, the appellant had mentioned that her mother had written the introduction portion as also the concluding portion on the Will. H

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A No. 2 etc. shall also be referred to at the appropriate juncture, to the extent of relevancy. 12.1. The respondent No. 1 in her evidence, inter alia, deposed that their mother was not even 10th standard pass and that she was having cordial relations with herself as also with the respondent No. 2. B 12.2. The respondent No. 2 in his evidence, inter alia, deposed that he was having good relations with his mother; and, as he was serving in Indian Army, the mother would talk to him over the phone and would even send letters and birthday card wishing him all the happiness.

13. Before proceeding further, one of the peculiar aspects of the matter, which carry its own bearing on the relevant questions and emanates from the record of proceedings of the Trial Court, may be noticed as infra. 13.1. It appears that at the initial stage of proceedings in the Trial Court, the relations of the appellant and the respondent No. 1 (who was respondent No. 2 in the Trial Court) had not gone into any discord. As noticed, the present respondent No. 1 stated before the Trial Court on 18.04.2007 that she did not wish to file any objections to the petition. However, it appears that during the course of evidence of the appellant, differences and disputes spurted between the appellant and the respondent No. 1 and the appellant filed a separate civil suit for injunction against the respondent No. 1. In sequel to this new position of conflict of interests, the respondent No. 1 attempted to put forward direct contest of the petition seeking probate and, on 24.03.2008, moved an application under Section 151 of the Code of Civil Procedure (‘CPC’) before the Trial Court, seeking opportunity of further cross-examination of the appellant. In this application, the respondent No. 1, inter alia, raised a plea about the alleged third page of the Will in question. The application so moved was rejected by the Trial Court on 25.03.2008 and, as regards the point concerning the alleged third page of the Will, the Court observed as under: G “25.03.2008 *** *** *** Point No. 2: From the point No. 2, it appears that respondent No. 2 now is raising a totally different and new stand regarding the 3 rd page of the Will. She has not produced the original or copy of the H

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alleged 3rd page along with this application. The story of this 3rd A page has come on record first time through this application which cannot be believed when nothing in this regard was asked in the cross examination of PW-1. Non filing of any objections against this Will despite taking opportunities prima facie leads to the inference that respondent No. 2 accepted the Will as correct. She B was also given some portion in the property under the Will and thus kept quite without disputing Will and now is challenging the genuineness of the Will all of a sudden simply on the ground that petitioner has filed a civil suit for injunction claiming exclusive ownership of the property. In the probate proceedings, the question of the ownership or title is not decided and court is only concerned with the fact whether the Will is genuine or not. Counsel for the petitioner during arguments stated that the rights given to the respondent No. 2 under the Will shall be protected. Keeping in view these above circumstances, I am of the view that no permission can be granted to the respondent No. 2 to cross examine further at point No. 2 mentioned in para No. 4 of the application.” 13.2. On 24.03.2008, another part of the proceedings had been that the Court closed the opportunity for cross-examination of some of the witnesses of the appellant by the respondent No. 2. After the aforesaid proceedings, an application under Order IX Rule 7 CPC was filed on behalf of the respondent No. 2. On the other hand, an application seeking permission to file written statement and for condonation of delay was filed on behalf of the respondent No. 1. In that application, the present respondent No. 1 again referred to the alleged third page of the Will; and such an assertion was again emphatically denied by the appellant while maintaining that the Will in question was only in two pages and there was no third page of the Will as alleged. 13.2.1. The aforesaid two applications were dealt with by the Trial Court in its order dated 03.07.2008. While the application filed by the respondent No. 2 was granted on costs but the application moved by the respondent No. 1 was rejected with costs. In regard to the aspects concerning the alleged third page of the Will, the Trial Court, observed as under: “In this application u/s 5 of Limitation Act, respondent no. 2 has relied upon alleged 3rd page of the Will whereas petitioner stated H

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A that the Will consisted of only 2 pages and it has no 3rd page. Respondent No. 2 has placed on record photocopy of that alleged 3rd page but even if this photocopy is seen and compared with original Will, then prima facie it can be said that it was not a part of the original Will the alleged 3rd page appears to be some another document and prima facia it is not certainly 3rd page of the Will. B Otherwise alleged 3rd page of the Will can not be relied upon because in the cross examination of PW-1 respondent no. 2 has not referred about it any where or confronted her with it though admittedly it was in her possession since beginning.” 13.3. The respondents yet persisted with their assertion about existence of the third page of Will in question and now, the respondent No. 2 moved an application under Order XI Rule 12 and 14 CPC seeking production of the same. This application was also resisted by the appellant while denying existence of any such third page and even with the allegation that this third page had been fabricated by the respondents in connivance with each other. The Trial Court dealt with and rejected the application so moved by the respondent No. 2 (who was respondent No. 3 in the Trial Court) by way of its order dated 23.08.2008, inter alia, with the following observations:- “Counsel for Respondent no. 3 during arguments read the cross examination of the petitioner as well as the contents of the alleged third page of the Will to show that, that the movable properties was distributed by the deceased during her life time in accordance with the contents of the third page of the Will so it can be said that the Will in fact consisted of three pages and not two pages as alleged by the petitioner, however, I am not convinced with this submission. In the cross examination of the petitioner the alleged third page of the Will was never put to confront her in order to substantiate the plea that the Will consists of three pages. Even in the cross examination of PW-2 attesting witness of the Will no suggestion was given that the Will was of three pages and not of two pages. The Will Ex. PW-1/H is of two pages and even the handwritten endorsement at the end of it point out that it consisted of only two pages. The alleged third page of the Will, photocopy of which was placed on record by the respondent no. 2 does not bear any date or signatures of any attesting witnesses. The alleged

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third page has already been found not a part of the Will as per order dated 3-7-2008. The respondent no. 3 in his objection has described the entire Will as forged and fabricated but now cannot be allowed to take a contradictory stand that the third page is genuine and other two pages are forged on the ground that admittedly the movable property was distributed in accordance with the alleged third page among the legal heirs. In this case, the claim is made by the petitioner in respect of one immovable property and one bank account and no claim is made in respect of any movable property. Even if it is presumed that deceased during her life time distributed her personal belongings, cash and jewellery in accordance with the third page then also that third page has now become useless because the distribution of the movable assets took place during life time of the deceased whereas the Will has to take effect after the death of the testatrix. Accordingly, in this case only subject matter remains is immovable property and the bank account. D Petitioner has denied the existence of this alleged third page and also denied having possession of the same. She has also denied supplying of the copies of this alleged third page to the respondents at the time of service of the petition. The reply is supported by an affidavit of the petitioner, so in such situation also no direction can be given to the petitioner to produce the original of alleged third page of the Will which is being relied upon by the respondent no. 3 now. Petitioner infact is saying that this third page has been fabricated by the respondents in connivance with each other. Accordingly, I find no merits in the application of respondent no. 3 especially when in the cross examination of PW-1 and PW- 2 no such third page was put for confrontation and relying upon this alleged third page now is contradictory from the contents of the objections filed to the petition. Application is thus, dismissed with cost of Rs. 1000/- to be paid to the petitioner.” G

14Copy pinpoint14. Hereinabove, we have expansively recounted the part of the proceedings in the Trial Court concerning the alleged third page of the Will. As could be readily noticed, while the contesting respondents, one way or the other, kept on insisting that there had been a third page of the Will but, per contra, existence of any such third page of the Will in H

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A question was categorically denied by the appellant; rather the appellant alleged that the said third page had been fabricated by the respondents in connivance with each other. The Trial Court also accepted the submission of the appellant that no such third page existed, particularly after noticing that the appellant was never confronted with any such third page of the Will. The Trial Court even observed that distribution of B movable assets of testatrix was complete during her lifetime and the only subject-matter remaining was the immovable property and the bank account. The relevance of these aspects shall appear in the later part of this judgment, when we shall be dealing with the effect of a different stand taken by appellant in the High Court. C FINDINGS OF THE TRIAL COURT

15Copy pinpoint15. Having glanced through the pleadings and evidence of the parties, having taken note of the contents and frame of the Will in question, and having also taken note of the relevant parts of proceedings before the Trial Court, we may look at the findings of the Trial Court in its D judgment dated 23.11.2009, particularly the reasons that weighed with it while declining the prayer for probate of the Will in question. 15.1. As regards the objection of respondent No. 2 that the property in question was an ancestral property, the Trial Court referred to the decision of this Court in Chiranjilal Shrilal Goanka v. Jasjit Singh: E (1993) 2 SCC 507 and held that the said objection would not be entertained because the ‘question of right, title, share and ownership is not to be decided in the probate proceedings’. The Trial Court also found that the testatrix was of sound mind at the time of execution of the Will, particularly when she was handling her own affairs including bank F account and property; was leading a very active life till her death; and was also attending club and driving her own car. 15.2. However, thereafter, the Trial Court took into account various circumstances which appeared to be suspicious. In the first place, the Trial Court referred to the decisions in H. Venkatachala Iyengar v. G B.N. Thimmajamma: AIR 1959 SC 443, Indu Bala Bose v. Manindra Chandra Bose: (1982) 1 SCC 20 and Surendra Pal v. Dr. Saraswati Arora: (1974) 2 SCC 600 and observed thatif propounder of the Will takes an active part in the execution of the Will and receives substantial benefit under it, then such a circumstance is generally treated as suspicious one. As regards the facts of the case at hand, the Trial H

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Court found that the appellant played an active role in execution of the A Will in question and at the same time, she was the major beneficiary thereunder where she was not only given the first floor but also the terrace rights and all other portions of the property in question. 15.3. Secondly, the Trial Court was of the view that the exclusion of the only son from the immovable property was also a suspicious circumstance. The Court took into consideration the birthday card Ex. RW3/1 sent by the testatrix to respondent No. 2 and was of the view that the words of praise in the said card belied the suggestion that the relationship between them was strained. The Trial Court also took into consideration the family photographs making out that the testatrix was present at the second marriage of respondent No. 2 and observed that the said photographs were not challenged or questioned by the appellant. The Trial Court also observed that the testatrix would not have given him the amount in the bank account if their relations were strained. 15.4. Thirdly, the Trial Court also found that the other daughter of the testatrix (the respondent No. 1 herein) virtually did not get any substantial share. The Trial Court was of the view that the exclusion of respondent No. 1 from the Will, when there was no proof of strained relationship of testatrix with her, made the Will unnatural and unfair; and this was another strong suspicious circumstance to reject the Will. 15.5. Fourthly, the Trial Court did not feel satisfied about the manner of writing and execution of the Will and observed that the testatrix had not completed her education and was not a computer literate; that a few portions of the Will were handwritten and there were traces of pencil lines beneath the handwritten portions, making out that the testatrix was asked to write as per dictation on the particular portion; and that certain portions of the Will contained technical and legal words not known to a layperson. The Trial Court observed that the relevant facts as to how the Will was typed and how the testatrix was made to write the particular clause in the Will in her own handwriting were not clarified and the manner of execution of Will was another suspicious circumstance. G 15.6. Fifthly, the Trial Court was of the view that the attesting witnesses were unreliable and the possibility of PW-3 being bribed was not ruled out as the appellant had given an amount of Rs. 25,000/- to his daughter. On the other hand, PW-2 admitted in his cross-examination that he hardly knew the testatrix. H

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A 15.7. Sixthly, the Trial Court also took into consideration the contradictions in the statements of the witnesses, which raised doubts as to the genuineness to the story of the appellant. The Trial Court pointed out that as per the appellant, she had no knowledge of the execution of the Will prior to 20.05.2003 but as per the testimony of PW-2, it was the appellant who called him on 18.05.2003 for the purpose of attestation of B the Will. 15.8. Seventhly, the Trial Court also observed that there were vague recitals in the Will such as, ‘other portions of the building’, when the said property consisted only of the ground floor and first floor.

16Copy pinpoint16. While elaborately dealing with all the suspicious circumstances concerning the Will and unreliability of the evidence led by the appellant, the Trial Court found that the appellant had not been able to remove the suspicions and hence, dismissed the petition. CONCURRENCE OF THE HIGH COURT

17Copy pinpoint17. Being aggrieved by the said judgment of the Trial Court, the appellant approached the High Court in FAO No. 36 of 2010 that has been considered and dismissed by the impugned judgment dated 27.06.2014. Having regard to the questions involved, we may notice the reasons that prevailed with the High Court in upholding the decision of E the Trial Court in requisite details. 17.1. In the impugned judgment dated 27.06.2014, the High Court in the first place took note of the relevant material on record; the suspicious circumstances surrounding the Will in question as indicated by the Trial Court; and the contentions of respective parties. Thereafter, the High F Court referred to the basic ingredients for due execution of a Will as per Section 63 of the Succession Act and Section 68 of the Indian Evidence Act, 18726 and the principles exposited by this Court in the cases of H. Venkatachala Iyengar v. B.N. Thimmajamma (supra); Rani Purnima Debi v. Kumar Khagendra Narayan Deb: (1962) 3 SCR 195, Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors.: (1977) 1 G SCC 369; Babu Singh and Ors. v. Ram Sahai @ Ram Singh: AIR 2008 SC 2485; Gurdial Kaur and Ors. v. Kartar Kaur and Ors.: 1998 SCR (2) 486; P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.: AIR 1995 SC 1852, Benga Behera and Anr. v. Braja Kisore Nanda and Ors.: (2007) 9 SCC 728 and B. 6 H Hereinafter also referred to as ‘the Evidence Act’.

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 385 [DINESH MAHESHWARI, J.]

Venkatamuni v. C.J. Ayodhya Ram Singh and Ors.: (2006) 13 SCC A 449 as also in a Division Bench decision of Madras High Court in J. Mathew and Ors. v. Leela Joseph : (2007) 5 MLJ 740 and observed thatas per settled law, mere proof of signatures on the Will was not sufficient to prove its due execution; and it was the duty of the party seeking probate to satisfy the conscience of the Court as regards due execution of the Will by the testator and for that matter, the Court can probe deeper into the matter to satisfy its conscience that the testator/ testatrix had duly executed the Will after understanding its contents. The High Court, thus formulated the point for consideration as under:- “28. The question for consideration is whether the evidence led by the appellant i.e., propounder satisfies the conscience of the court that the Will in question was duly executed.” 17.2. Thereafter, the High Court took up the crucial finding of the Trial Court that the evidence on record did not establish that while signing the Will Ex. PW1/H, the testatrix understood the contents thereof. D 17.2.1. In regard to this fundamental aspect as to whether the testatrix understood the contents of the document Ex. PW1/H, the High Court meticulously examined the material on record and observed that the appellant, in her evidence, did not mention that the testatrix was aware of the contents of the Will. The High Court further referred to the testimony of the appellant to the effect that she was not made aware by the testatrix as to who had drawn and typed the Will in question; that she was made aware about the Will only on the day of its execution; that she was not aware if testatrix had discussed the Will with respondent Nos. 1 and 2; that she was not directed by the testatrix to call respondent Nos. 1 and 2 on the day of execution of the Will; and that though she remembered the testatrix writing something, but she was unsure whether it was on the document of Will. A major discrepancy was observed by the High Court in her deposition with regard to the attesting witnesses where the appellant stated that the testatrix had discussed the contents of the Will with PW-2 and PW-3 while those witnesses denied the same in their evidence. Thus, after having thoroughly examined the testimony of the appellant, the High Court concluded that nothing was brought on record to show that the testatrix was aware of the contents of the Will. The High Court said,- “30. The evidence on record in this regard is examined. The appellant has nowhere stated in her evidence by way of affidavit H

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A Ex.P1 that testatrix was aware of the contents of the Will Ex. PW1/H. In her cross-examination, she has stated that her mother i.e. testatrix did not discuss the contents of the Will Ex.PW1/H with her before drawing it nor her mother told her as to who had drawn and typed the said Will. The appellant has further stated in cross-examination that she does not know when Will Ex.PW1/H B was got typed. She has further stated that she had come to know about the said Will Ex.PW1/H only on 20-21 May, 2003. The appellant has also deposed that she does not know whether her mother i.e., testatrix had discussed the Will Ex.PW 1/H with respondent no.2 or respondent no.3. Her mother did not ask her C to call respondent nos.2 and 3 on that day. In cross-examination, she has further stated that her mother had discussed the contents of the Will with the witnesses i.e. PW2 and PW3 whereas PW2 and PW3 in their evidence have denied the same. The appellant has further deposed that she does not know if any professional or any deed writer was engaged for drafting/typing of the Will Ex.PW D 1/H. The appellant has also deposed that on that day her mother had written something but she does not know whether it was on the Will or something else. From her evidence, it cannot be said that testatrix was aware about the contents of the Will Ex.PW1/ H.” E 17.2.2. The High Court also examined the evidence of attesting witnesses PW-2 Shri Urvinder S. Kohli and PW-3 Major General Manjit Ahluwalia, who deposed that the testatrix did not discuss the contents of the Will with them nor did they question her about the same; and that after they had arrived at the residence of testatrix, she went ahead to F write something more on the Will before signing it. The High Court observed that from their testimonies too, nothing was proved if the testatrix understood the contents of the document in question and said,- “ 33. Even from the evidence of attesting witnesses i.e. PW2 and PW3 it can’t be said that testatrix had put her signatures on the G Will Ex. PW1/H after understanding its contents or that while signing she was aware of its contents.” 17.2.3. Proceeding further, the High Court also took note of the statement of the respondent No. 1 that the testatrix was not even 10th pass; and also referred to the statement of the appellant that she was not aware of the educational qualification of her mother but her mother

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 387 [DINESH MAHESHWARI, J.]

could read and write in the English language. The High Court referred to the fact that the testatrix was not computer literate and had no legal knowledge; and the language used in the Will showed that the same was drafted by a lawyer. The High Court observed that no evidence was led in as to who drafted and typed the Will Ex. PW1/H and considered the same to be a suspicious circumstance with reference to the decision of this Court in Smt. Jaswant Kaur (supra). The High Court also took into account the feature that the document in question was partly typed and partly handwritten with no plausible explanation for the same and found that the document was not prepared in one sitting. Thus, after thorough analysis, the High Court concluded that from the evidence led in by the appellant, it cannot be said that the testatrix had understood the typed portion or that the same was read over to her before she put her signatures on the Will. Accordingly, the High Court affirmed the findings of the Trial Court in regard to such a suspicious circumstance while observing and finding as under: – “35. …The Will Ex. PW1/H is partly typed and partly hand written D i.e. opening and closing para of the Will Ex. PW1/H. The evidence shows that the Will Ex. PW1/H was also not prepared in one sitting. The first and last para of Will Ex. PW1/H is in the handwriting of testatrix. The rest of the Will Ex. PW1/H is typed one. No explanation has been given in evidence as to why the Will is partly handwritten and partly typed. During arguments, learned counsel for appellant has submitted that first and last para are handwritten so as to give more weightage to the Will in question. However, the reasoning given is not understandable. Further, no evidence is led by the appellant to show from where the Will in question was got typed. The first para of Will in question gives the name and other details of testatrix and last para is the closing para of the Will in question. The typed portion gives the details of alleged bequeath in the Will Ex. PW1/H whereby major portion has been given to the appellant and one floor as per choice of the appellant is alleged to have been bequeathed in favour of respondent No. 2. Reading the evidence led by the appellant it can’t be said that the testatrix had understood the typed portion or same was read over to her before she had put her signatures on the Will Ex. PW1/H. The learned ADJ has rightly held the above as the suspicious circumstance…..” H

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A 17.3. The High Court thereafter examined the bequeathing contents of the Will in question and observed that nothing was available in the petition or evidence of the appellant as to why the major portion of immovable property was given to her though she was not staying with the testatrix for about 20-22 years and it was not her case that she was looking after the testatrix who was a cancer patient. On the other side of the picture, the High Court noticed that the widowed daughter of the testatrix (respondent No. 1 herein) was, at the relevant time, living on the first floor of the house where testatrix was residing; and, as per the evidence on record, respondent No. 1 was looking after her mother and was taking her to Army Hospital. Having thus taken note of the overall scenario and setup, the High Court found it rather inexplicable that the respondent No. 1 was left at the mercy of the appellant; that in the Will in question, no time limit was provided as to when the appellant would construct the floors and about the nature and quality of the construction; and that respondent No. 1 shall have to be dispossessed for the purpose of the expected construction. D 17.4. The High Court also dealt with another major factor pertaining to this case that the appellant, the major beneficiary, indeed played an active role in execution of the Will in question; and noticed material contradictions in the testimonies of appellant and her witness PW-2. The High Court found that the appellant was unable to satisfy the E conscience of the Court in regard to such suspicious circumstance in the following passages:- “40. Reading the Will in question, it is the appellant who is the major beneficiary of the Will. The evidence on record shows that she has also played an active role in the preparation of the alleged F Will. She was present when the Will in question was allegedly executed. The attesting witness Urvinder S Kohli, PW-2 is very well known to the appellant being her friend for the past 30 years. He has deposed that he had known deceased through appellant and later the appellant’s cousin’s son got married to his daughter G in the year 1994 and since 1994 he had visited testatrix only twice or thrice on social occasions. Reading his evidence it can’t be said that he was close to the testatrix. In these circumstances, testatrix could not have called him of her own for attesting the Will Ex.PW1/H. Though in the evidence, appellant has deposed that her mother i.e., testatrix had called the said witnesses whereas H

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the witness PW2 has deposed that on 18.5.2003, he was called A by the appellant who told him to come to her mother’s house on 20.5.2003 as her mother wanted to executed the Will.

41. The evidence on record shows that appellant has taken a prominent part in execution of Will Ex.PW1/H which confers on her a substantial benefit worth crores of rupees. This itself is a B big suspicious circumstance as has been held by Supreme Court in Niranjan Umesh Chandra Joshi vs. Mridula Jyoti Rao: 2007 (1) AD SC 477. It has also been held by Supreme Court in Surinder Pal vs. Saraswati Arora: (1974) 2 SCC 600 that where propounder takes prominent part in the execution of Will which confers on him a substantial benefit that is itself one of the suspicious circumstance which he must remove by clear evidence. In the present case no evidence is led by appellant to satisfy the conscience of the court to clear the aforesaid suspicious circumstance existing at the time of making of Will Ex.PW1/H. The propounder was required to remove the doubts by clear and satisfactory evidence.” 17.5. Turning on to the respondent No. 2 (son of the testatrix), the High Court found that absolutely no reason was provided in the Will for excluding him from the said immovable property and for limiting his benefit under the Will to the balance amount in the savings bank account of the testatrix. The High Court observed that though the appellant had deposed that there were strained relations between the testatrix and respondent No. 2 but, on the contrary, the witness PW-3 Major General Manjit Ahluwalia, son of sister of the testatrix, as also respondent No. 1 had deposed that their relations, in fact, were satisfactory. The High Court again referred to the documentary evidence as regards regular maintaining of good relations between the testatrix and her son, like those of birthday card and the family photographs, and observed that if at all there were strained relations, the testatrix would not have even bequeathed any amount to her son. Again, after a thorough analysis of the evidence on record, the High Court found that there was no sufficient evidence of strained relations between the testatrix and her son to such an extent that she would have excluded him from her immovable property. Hence, the exclusion of respondent No. 2 from bequeath was also taken to be that of a grave suspicious circumstance casting doubt on the genuineness of the Will in question. The High Court, inter alia, observed,- H

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A “46. There is no evidence coming forth to explain the suspicious circumstance of excluding respondent no.3 from bequeath of the immovable property. As noted above, there is no evidence that deceased had understood the contents of the Will Ex.PW1/H before signing it. In this background, exclusion of respondent no.3 is also a grave suspicious circumstance which has also remained unexplained. The same cast doubt as to the genuineness of Will Ex.PW1/H.” 17.6. Yet further, the High Court also noticed that though respondent No. 1 resided only one floor above the testatrix and was also maintaining good relations with her, but only the appellant was called at the time of execution of the Will and no reason was provided for not calling the respondent No. 1. That apart, the High Court also took note of the fact that respondent No. 1 was made aware of the execution of the Will only after three years from the date of its execution. The execution of the Will in secrecy, without informing the other legal heirs, and without affording explanation for such an act, was also considered as another unexplained suspicious circumstance. 17.7. The High Court also referred to various contradictions in the testimonies of the appellant and the said two attesting witnesses on the material aspects concerning the execution of Will by testatrix, particularly as to how the handwritten portion was scribed on the document and as regards discussion concerning the contents of the document; and found such contradictions to be serious in nature, creating doubt about the execution of Will Ex. PW1/H in accordance with law. After examining the relevant parts of evidence, the High Court observed and found as under:- F “48. Further, there are serious contradictions in the testimony of attesting witnesses i.e. PW2 and PW3 and that of appellant on material aspects pertaining to the execution of the Will. In affidavit Ex. P1 the appellant has stated that the testatrix had brought out a partly typed Will and further wrote in her own hand the opening G and closing paragraphs of the Will Ex. PW1/H. In cross- examination, she has stated that she does not know whether she had written on the Will or something else. Sh. Urvinder S. Kohli PW2 has stated that the handwritten portion on the Will Ex. PW1/ H was written by the testatrix of her own. Sh. Manjit Ahluwalia H PW3 has stated in cross-examination that the testatrix was having

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one draft out of which she copied something in her own handwriting on Will Ex. PW1/H. All the three witnesses have deposed differently as to how handwritten portion was written on Will Ex. PW1/H. There is also contradiction as regards discussion about the contents of Will Ex. PW1/H by testatrix with the attesting witnesses. The appellant has stated in her cross-examination that her mother had discussed the contents of Will with the witnesses whereas both the attesting witnesses have denied that the contents of Will were discussed by the testatrix. PW2 has also stated in the cross-examination that he even did not question the testatrix on the same. There is also contradiction about the manner of taking out of Will at the time the witnesses had reached the house of testatrix. The attesting witness PW2 has deposed that the Will was not produced before him when he was present with the testatrix and appellant. According to him, when PW3 had come, only then the Will was produced. On the other hand, Sh. Manjit Ahluwalia PW3 has deposed that when he had reached the house of testatrix Will Ex. PW1/H had already been taken out by the testatrix before he reached her house. The above contradictions are serious in nature and create a doubt about the execution of Will Ex. PW1/H in accordance with law.” 17.8. Taking into comprehension the aforesaid observations and findings, it is apparent that the High Court, after an independent analysis of the evidence on record, concurred with the major findings of the Trial Court as regards various suspicious circumstances which remained unexplained and which operated against genuineness of the document propounded as Will of the mother of the parties. However, that was not the end of the matter because another doubtful factor was also analysed by the High Court as regards payment of a sum of Rs. 25,000/- by the appellant to the daughter of the attesting witness PW-3 Major General Manjit Ahluwalia, through cheque from an account jointly maintained in the name of testatrix and the appellant but, after the death of the testatrix. The contesting respondents claimed that the aforesaid payment was made in order to garner favour from the attesting witness PW-3. In this regard, the stand of the appellant had been that such an amount was paid not only to the daughter of PW-3 but also to the daughter of respondent No. 1 and to the sons of appellant as the testatrix wanted to gift the said amount to them. Interestingly, in order to buttress this stand of the appellant that the amount was paid to the daughter of PW-3 as H

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A per the wishes of testatrix, the learned counsel for the appellant before the High Court referred to the alleged third page of the Will. After noticing such a submission made on behalf of the appellant with reliance on the alleged third page of the Will, the High Court referred to the very same proceedings of the Trial Court which we have referred in detail hereinbefore, where the respondents wanted to produce the alleged third page of the Will but the appellant denied the very existence of any such third page of the Will in question. The High Court found that the said third page of the Will was never produced before the Trial Court; and observed that even if existing, the alleged third page of the Will does not dispel the suspicious circumstances. This part of the discussion and observations of the High Court, in paragraph 49 of the impugned judgment, could be usefully extracted as under: – “49. It has also come in the evidence that Rs. 25000/- was paid by the appellant to the daughter of the attesting witness Major General Manjit Ahluwalia PW3 through cheque Ex. R3W1-C from account jointly in the name of testatrix and the appellant after the death of testatrix. The stand of respondent No. 2 and 3 is that the aforesaid payment was made in order to get favour from the attesting witness PW3 as such his evidence is not reliable. On the other hand, the stand of the appellant is that the said amount was not only paid to the daughter of PW3 but was also paid to the daughter of respondent No. 2 and to the son of appellant as the deceased/testatrix wanted to gift the said amount to them. In support of the stand, learned counsel for appellant has referred to the alleged third stage of Will in question. It may be mentioned that the alleged third page of the Will Ex.PW1/H is never produced by the appellant. Rather, when the respondent No. 3 had moved an application for production of the alleged third page of the Will, appellant had denied the existence of said page. The third page of the Will is never proved before the learned ADJ. Even assuming the alleged third page exists, the same does not dispel the suspicious circumstances as have been noted above. In these circumstances, the contention of the appellant that the alleged third page of Will Ex. PW1/H proves its validity has no force.” 17.9. After taking note of the aforesaid inexplicable features, unusual circumstances and unreliability of the witnesses, and finding no fault or malafide in the respondent No. 1 contesting the matter at the H

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later stage, the High Court in its impugned judgment dated 27.06.2014, A while concurring with the findings of the Trial Court, dismissed the appeal and held that mere signature on the Will by the testatrix was not sufficient to prove that the said Will was duly executed after understanding the contents thereof. The High Court concluded on the matter as follows:- “51. In view of above discussion, the findings of learned ADJ that B Will Ex.PW1/H is surrounded by various suspicious circumstances which has remained unexplained and the possibility of aforesaid Will not duly executed by the deceased after understanding its contents are confirmed. No illegality or perversity is seen in the findings given by the learned ADJ. No case is made out for interference with the impugned judgment.” C

RIVAL CONTENTIONS The Appellant

18Copy pinpoint18. Being aggrieved by the judgment so passed by the High Court dismissing her appeal and maintaining rejection of her prayer for grant of probate, the petitioner-appellant has preferred this appeal by special leave. Assailing the impugned judgments, learned counsel for the appellant has strenuously contended that due execution of the Will as per the requirements of the Succession Act having been proved in accordance with procedure prescribed by the Evidence Act; and no cogent reason or circumstance having been established on record against the genuineness of the contested Will, a clear case for grant of probate is made out but the Trial Court as also the High Court have proceeded to reject the prayer of the appellant on entirely baseless considerations while doubting the Will on the so-called suspicious circumstances, though there is none. F 18.1. Elaborating on her submissions, the learned counsel for the appellant has submitted that a Will has to be proved like any other document but, it has to satisfy the requirements ofSection 63 of the Succession Act in the manner that for due execution, the testator has to sign or affix his mark on the Will or it has to be signed by some other G person in the presence of testator and under his direction; and the Will has to be attested by two or more witnesses, each of whom has seen such signing or affixation by testator or by other person acting as per the directions of the testator. Further to that, as per Section 68 of the Evidence Act, at least one attesting witness has to be examined in proof of a Will. H

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A verdict; and any suggestion about suspicion ought to be examined by the Court while guarding against conjectures and mere fantasy of a doubting mind. The learned counsel has iterated the principles in the decisions aforesaid that there ought to be real, germane and valid suspicious features for which the propounded Will may be called in question, but there had been no such feature or circumstance in the present case. B 18.5. As regards the manner of execution of the Will in question, the learned counsel has submitted that the ratio of Joyce Primrose Prestor (supra), that greater degree of presumption arises in the case of a “holograph” Will, is applicable to the present case too, where the significant contents relating to the particulars of the testatrix and her unequivocal bequeath, in the opening and concluding passages, were duly written in her own hand by the testatrix. 18.6. While dealing with the suspicious circumstances taken into consideration by the Trial Court and the High Court, the learned counsel has submitted that the alleged circumstances were either non-existent, or were not pleaded, or were not of any suspicion at all. 18.6.1. The learned counsel would submit that the circumstances like the appellant being the major beneficiary; she playing an active role in execution of the Will; exclusion of son from the benefit of estate; the other daughter virtually not getting any share; and the manner of writing of the Will were neither specifically pleaded nor they operate against the genuineness of the Will in question. Further, according to the learned counsel, the circumstances like non-information of execution of Will to the legal heirs; vague contents of Will; and contradictions in the statements of witnesses are, on the face of it, imaginary and conjectural and could only be ignored. 18.6.2. The learned counsel has contended, with reference to the decisions in Leela Rajagopal and Ors. v. Kamala Menon Cocharan and Ors.: (2014) 15 SCC 570, Ved Mitra Verma v. Dharam Deo Verma: (2014) 15 SCC 578; Mahesh Kumar v. Vinod Kumar and G Ors.: (2012) 4 SCC 387; Savithri and Ors. v. Karthyayani Amma and Ors.: (2007) 11 SCC 621; Pentakota Satyanarayana and Ors. v. Pentakota Seetharatnam and Ors.: (2005) 8 SCC 67; Uma Devi Nambiar and Ors.v. T.C. Sidhan: (2004) 2 SCC 321; Ramabai Padmakar Patil and Ors. v. Rukminibai Vishnu Vekhande and Ors.: (2003) 8 SCC 537 and Rabindra Nath Mukherjee and Anr. v. H Panchanan Banerjee and Ors.: (1995) 4 SCC 459, that mere

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 397 [DINESH MAHESHWARI, J.]

presence of the propounder/beneficiary of a Will at the time of its execution; or exclusion of the natural heirs from any benefit; or acquaintance of the propounder with any witness are not of such suspicious circumstances as to create legitimate doubts on the genuineness of the Will. 18.6.3. As regards the question of monetary benefits to the attesting witnesses, it is maintained on behalf of the appellant that there had not been any monetary benefit to PW-2; and monetary benefit to the daughter of PW-3 has to be seen in the background that the said witness is a Major General and was closely related to the testatrix; there is no allegation as to the credibility of the said witness; and the frivolous doubt is being raised on his credibility only where an amount of Rs. 25,000/- C ‘out of love and affection’ has been given in the year 2006. 18.7. Thus, it is submitted that the Will in question is the genuine last Will of the mother of parties; and the appellant being the executor, may be granted probate as prayed for. D The respondent No. 2

19Copy pinpoint19. While countering the submissions made on behalf of the appellant, learned counsel for the respondent No. 2, son of testatrix who had filed the objections and has consistently contested the matter, has recounted the suspicious circumstances taken into account by the Trial E Court and the High Court and has contended that the appellant has utterly failed to explain any of them and hence, the Will in question cannot be said to have been made by the testatrix after understanding the meaning and purport of its contents. 19.1. In the forefront of arguments, learned counsel for the respondent No. 2 has submitted that the appellant, who is admittedly the major beneficiary of the disputed bequest, indeed played a prominent role in execution of the Will in question and then, tried to deliberately conceal this fact of her active role in making of the document. The learned counsel has elaborated on these submissions with reference to the pleadings and averments of the appellant at various stages of proceedings where she consistently maintained that she ‘had role in the making and execution’ of the Will in question. The learned counsel has also referred to the statement of the appellant in the cross-examination to the effect that the testatrix did not ask her to find witnesses to the Will and that she might have called the witnesses to the Will on her own. H

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A These assertions of the appellant, according to the learned counsel, are effectively contradicted by PW-2 Urvinder S Kohli, who maintained that it was the appellant who, on 18.05.2003, asked him to come to the testatrix’s house and thereupon he agreed to come on 20.05.2003. With reference to the decision inH. Ventakachala Iyengar (supra),the learned counsel has argued that when the propounder plays an active role in execution of Will and gets major benefit thereunder, that itself is a suspicious circumstance and the propounder must remove the suspicion by clear and satisfactory evidence, which the appellant has failed to adduce. 19.2. Further, the learned counsel for the respondent No. 2 has referred to the other parts of the testimony of PW-2 Urvinder S Kohli to submit that this witness was barely known to the testatrix whereas he was close to the appellant for about 30 years. With reference to the decision of this Court inRamchandra Rambux v. Champabai and Ors.: AIR 1965 SC 354 and that of Delhi High Court in Rajesh Chand and D Ors. v. Dayawati and Ors.: ILR (1981) 2 Delhi 477, the learned counsel has contended that closeness of attesting witness of the Will with the propounder is itself a suspicious circumstance; and the appellant has failed to explain this circumstance either. 19.3. The learned counsel for the respondent has further made E scathing remarks in relation to the bequest as proposed in the Will in question and has submitted that without any rhyme or reason, such unjust and unreasonable distribution of the assets of the testatrix has been proposed which was not likely to be made by the mother of parties, particularly when she had nothing against her son and against the other daughter. F 19.3.1. The learned counsel would submit that in fact, the other daughter (respondent No. 1) of the testatrix was a widow with an unmarried daughter; and she had been given the first floor of the house (which was the property of testatrix) for residence; and she was taking care of testatrix, who was suffering from cancer. In the given circumstances, there was no reason that testatrix would have left her widowed and needy daughter at the mercy of the appellant with vague and uncertain conditions of raising upper story construction by the appellant, as found in the Will in question. The learned counsel would also submit that the bequeath made by the testatrix could be limited to her property alone and cannot include a property constructed by another

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 399 [DINESH MAHESHWARI, J.]

person; that a property constructed using one’s own money will be the exclusive property of that personand as such, the conditional bequest made in the present case, to appear as if the respondent No. 1 was likely to get some property, had, in fact, been sham and illusory. According to the learned counsel, such wordings in the Will as also the payments and handing over car to the daughter of respondent No. 1 seems to have precluded her from contesting the matter in the first place but that does not give any weight or support to the Will in question. 19.3.2. While relying on the same decisions and with reference to the material on record, the learned counsel has submitted that respondent No. 2, though having remained away because of his enlistment in the Army, had always been in good terms with his parents; and there was no reason that his mother, the testatrix, would have given him only a pittance of amount in the bank while disinheriting him from the immovable property. 19.3.3. The learned counsel has relied on the decision in Rani Purnima Debi (supra)and has also referred to the decision in Ram D Piari v. Bhagwant and Ors.: AIR 1990 SC 1742 to submit that disinheritance among heirs of equal degrees without providing any reason for exclusion of daughter also amounts to a suspicious circumstance. 19.4. The learned counsel has also questioned the manner of writing and executing the document in question. The learned counsel has referred to the inconsistencies in the depositions of the witnesses in regard to the questions as whether the contents of the Will in question were made known to the testatrix and whether the same were discussed with the witnesses. The learned counsel would submit that the testatrix was barely 10th standard pass and was, obviously not conversant with such legal jargon as would appear in the body of the Will in question.The appellant has attempted to say that she had no role in typing/scribing of the document and as per the witnesses, the contents were not discussed with them. In such a scenario, there remains another unexplained suspicious circumstance, as to who had drafted the Will in question and who prepared the alleged note for the testatrix wherefrom, she was to write at the opening and closing parts of the Will. The learned counsel has submitted that when the main part of the Will was typed, it is questionable why the inconsequential portion was handwritten; and these lacunas in the evidence of the appellant raises a possibility that the Will was neither prepared nor understood by the testatrix. The learned counsel H