KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.

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A has referred to the decision in Krishan Dass Gupta v. The State & Ors: 2012 SCC OnLine DEL 977 19.5. Another long deal of arguments by the learned counsel for the respondent No. 2 has been with reference to the alleged third page of the Will. The learned counsel has referred to the very same B proceedings in the Trial Court which we have recounted hereinbefore; and has submitted that in the Trial Court, appellant consistently maintained that there was no third page of the Will but when the issue of payment of a sum of Rs. 25,000/- to the daughter of the attesting witness PW-3 cropped up before the High Court, such a payment was sought to be justified with reference to the very same third page of the Will in question. C Such shifting stand of the appellant, according to the learned counsel, gives rise to more suspicions; and it appears seriously questionable if the Will in question was indeed the last Will of the testatrix and was executed with the contents as desired by her. The respondent No. 1 D

20Copy pinpoint20. On the other flank of opposition, learned counsel for respondent No. 1 has maintained that this respondent has all through disputed the very execution of the Will by her mother; and the suspicious circumstances having not been removed, the prayer for grant of probate has rightly been rejected. E 20.1. In the first place, learned counsel for respondent No. 1 has vehemently countered the submissions that this respondent had accepted the claim of the appellant for probate of the Will in question and she is not entitled to make the submissions in contest. The learned counsel has referred to the facts that even if this respondent did not file her written F statement, she indeed led evidence rebutting the case of the appellant and the Courts have returned concurrent findings that her contest was neither an afterthought nor malafide. The learned counsel has referred to the aforementioned decisions in H. Venkatachala Iyengar, Rani Purnima Debi and Smt. Jaswant Kaur to submit that Probate Court is G a Court of conscience; and where the propounder is to satisfy the conscience of the Court with removal of suspicious circumstances, the respondent No 1, elder and widowed daughter of the testatrix, has every right to make submissions to assist the Court in such an enquiry. Without prejudice, the learned counsel has further submitted that even in a civil case where right of filing written statement is closed, the defendant is H

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not precluded from demonstrating that the evidence led by the plaintiff is not sufficient to make out a case for grant of relief as prayed for. The learned counsel has, inter alia, referred to Section 58 of the Evidence Act; Order VIII Rule 5(2) and Order VIII Rule 10 CPC and has relied on the decision in Balraj Taneja and Anr. v. Sunil Madan and Anr.: (1999) 8 SCC 396. The learned counsel has also pointed out that appellant never objected to the evidence of the respondent No. 1 and while relying on the decision in Modula India v. Kamakshya Singh Deo: (1988) 4 SCC 619, has contended that the submissions of respondent No. 1 cannot be discarded. 20.2. The learned counsel has referred to the position of respondent No. 1 and her relationship with the testatrix with the submissions that respondent No. 1 is the eldest daughter of the testatrix, being 10 years older to the appellant and three years older to the respondent No. 2; that the testatrix being aware of her adverse circumstances, had given her the first floor of the property (which is the subject-matter of the present proceeding); that the relationship between the testatrix and the respondent No. 1 had always been very good; that testatrix being a cancer patient, the respondent No. 1 was taking her for treatment to Army Hospital; that due to the physical proximity while residing in the same building, the testatrix and the respondent No. 1 had special bonds between them. In the given setup, according to the learned counsel, it seems quite unnatural that the testatrix would leave the respondent No. 1 at the mercy of appellant with such uncertain stipulations as contained in the contested Will. 20.3. Arguing further, the learned counsel has contended that though the appellant has attempted to suggest that the respondent No. 1 was excluded from the first floor of the property in question but, there had not been any reason for such exclusion. The learned counsel has contended what has been created by the Will in question is only an illusory and vague bequest in relation to the respondent No. 1 for: a) the bequest to respondent No.1 is of a floor above the first floor, which is not in existence; b) no time frame is provided within which the appellant may choose to execute either of the two options and no corresponding option is provided to respondent No.1 meaning thereby, that the bequest made by virtue of the Will in favour of respondent No.1 has been indefinitely postponed; c) the entire property is vested in the appellant immediately upon the demise of the testatrix including the bequest made to respondent H

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A No. 1; and d) the nature and quality of the expected construction has not been specified. According to the learned counsel, practically there is no effective bequest in relation to the respondent No. 1 and there is no reason for the testatrix adopting the course as suggested. 20.4. The learned counsel has relied on the decisions of this Court B in B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. : (2006) 13 SCC 449; H. Ventakachala Iyengar; and Rani Purnima Debi (supra) amongst others, to submit that the Probate Court can investigate into the matter of a Will despite the fact that the signature found thereon has been proved or ingredients of Section 68 of the Evidence Act has been complied with. The learned counsel has referred to the definition of the expression “suspicion” in P. Ramanatha Aiyar’s Advanced Law Lexicon and has also relied upon thedecision in Indu Bala (supra) to submit that suspicion permits the Court to realistically imagine any doubtful or distrustful facet of a case; and in testamentary jurisdiction, the Courts are permitted to ferret out doubtful circumstances, which cannot be described as conjecture or surmise. 20.5. The learned counsel has again recounted various circumstances, including manner of making of the Will and contradictions/ inconsistencies in the statements of the witnesses examined by the appellant, which have been taken into account in the impugned judgments and have also been referred by the learned counsel for the respondent No. 2; which need not be repeated. The learned counsel has also placed before us a flow chart reflecting thirteen aspects of findings, including those of suspicious circumstances, which have been returned concurrently against the appellant and has contended that no case for interference with such concurrent findings is made out. The counsel has additionally relied on the decision in Apoline D’Souza v. John D’Souza: AIR 2007 SC 2219. 20.6. In another line of arguments, learned counsel for the respondent No. 1 has contended that the Will in question cannot have greater sanctity only because the opening and closing parts are handwritten; rather it isstrange that the testatrix chose not to write the main bequest by hand and then, the handwritten portion of the Will in question is placed in a squeezed manner and is not attested by any witness. The learned counsel would submit that such interlineations only go to show that additions have been made in the Will subsequent to its execution and failure to assign the reason behind such a course is fatal to the case

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 403 [DINESH MAHESHWARI, J.]

put up by the propounder. The learned counsel has relied on the decision in Dayananadi v. Rukma D. Suvarna & Ors.: (2012) 1 SCC 510 in support of these contentions.

21Copy pinpoint21. We have bestowed anxious consideration to the rival submissions with reference to the law applicable and have also scanned through all the records pertaining to this case, including the records of the Trial Court and the High Court. WILL – PROOF AND SATISFACTION OF THE COURT

22Copy pinpoint22. As noticed, the basic 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. C Obviously, a just and proper determination of this point would revolve around the legal principles applicable as also the relevant factual aspects of the case. Before entering into the factual aspects and the questions in controversy, appropriate it would be to take note of the applicable legal provisions and principles concerning execution of a Will, its proof, and its D acceptance by the Court.

23Copy pinpoint23. It remains trite that a Will is the testamentary document that comes into operation after the death of the testator. The peculiar nature of such a document has led to solemn provisions in the statutes for making of a Will and for its proof in a Court of law. Section 59 of the Succession E Act provides that every person of sound mind, not being a minor, may dispose of his property by Will. A Will or any portion thereof, the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator, is declared to be void under Section 61 of the Succession Act; and further, Section 62 of the Succession Act enables the maker of a Will to make or alter the F same at any time when he is competent to dispose of his property by Will. Chapter III of Part IV of the Succession Act makes the provision for execution of unprivileged Wills (as distinguished from privileged Wills provided for in Chapter IV) with which we are not concerned in this case. G 23.1. Sections 61 and 63 of the Succession Act, relevant for the present purpose, could be usefully extracted as under: – “61. Will obtained by fraud, coercion or importunity.- A Will or any part of a Will, the making of which has been caused by H

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A fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. *** *** ***

63. Execution of unprivileged Wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, B or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. C (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witness, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 23.2. Elaborate provisions have been made in Chapter VI of the Succession Act (Sections 74 to 111), for construction of Wills which, in their sum and substance, make the intention of legislature clear that any irrelevant misdescription or error is not to operate against the Will; and approach has to be to give effect to a Will once it is found to have been executed in the sound state of mind by the testator while exercising his own free will. However, as per Section 81 of the Succession Act, extrinsic evidence is inadmissible in case of patent ambiguity or deficiency in the Will; and as per Section 89 thereof, a Will or bequest not expressive of any definite intention is declared void for uncertainty. Sections 81 and 89 read as under:- “81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency.- Where there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to the intentions of the testator shall be admitted. *** *** ***

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89. Will or bequest void for uncertainty.- A Will or bequest not expressive of any definite intention is void for uncertainty.” Moreover, it is now well settled that when the Will is surrounded by suspicious circumstances, the Court would expect that the legitimate suspicion should be removed before the document in question is accepted as the last Will of the testator. B 23.3. As noticed, as per Section 63 of the Succession Act, the Will ought to be attested by two or more witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence as per the requirements of Section 68 of the Evidence Act, that reads as under: – “68. Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a E Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”

24Copy pinpoint24. We may now take note of the relevant principles settled by the consistent decisions in regard to the process of examination of a Will when propounded before a Court of law. 24.1. In the case of H. Venkatachala Iyengar (supra), a 3-Judge Bench of this Court traversed through the vistas of the issues related with execution and proof of Will and enunciated a few fundamental guiding principles that have consistently been followed and applied in almost all the cases involving such issues. The synthesis and exposition by this Court in paragraphs 18 to 22 of the said decision could be usefully reproduced as under:- “18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic H

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A for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. S. 67 and 68, Evidence Act are relevant for this B purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. C Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in D a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section E 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. 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 H

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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.

19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. 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.

20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder’s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator’s free will and mind. In such cases the Court H

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A would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word ‘conscience’ in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.

22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 409 [DINESH MAHESHWARI, J.]

fast or inflexible rules can be laid down for the appreciation of the evidence. 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. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N C 895 : (AIR 1946 PC 156), “where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth”. It D would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.” (emphasis supplied) 24.2. In Rani Purnima Debi (supra), this Court referred to the E aforementioned decision in H. Venkatachala Iyengar and further explained the principles which govern the proving of a Will as follows:- “5. Before we consider the facts of this case it is well to set out the principles which govern the proving of a will. This was considered by this Court in H. Venkatachala Iyengar v. B. N. F Thimmajamma, (1959) Supp (1) SCR 426: AIR 1959 SC 443. It was observed in that case that the mode of proving a will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will was on the propounder and in the absence of G suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the H

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A Court before the will could be accepted as genuine. If the caveator alleged undue influence, fraud or coercion, the onus would be on him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder’s case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator’s mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator’s D free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even when where there suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations.” (emphasis supplied) 24.3. In the case of Indu Bala Bose (supra), this Court again said,- “7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 411 [DINESH MAHESHWARI, J.]

circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. 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. E 8 . Needless to say that 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.” F (emphasis supplied) 24.4. We may also usefully refer to the principles enunciated in the case of Jaswant Kaur (supra) for dealing with a Will shrouded in suspicion, as follows: – G “9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court’s conscience and then the true question which arises for consideration is whether the evidence led by the propounder H

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A of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.” B (emphasis supplied) 24.5. In the case of Uma Devi Nambiar (supra), this Court extensively reviewed the case law dealing with a Will, including the Constitution Bench decision of this Court in the case of Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.: AIR 1964 C SC 529, and observed that mere exclusion of the natural heirs or giving of lesser share to them, by itself, will not be considered to be a suspicious circumstance. This Court observed, inter alia, as under:- “15. Section 63 of the Act deals with execution of unprivileged Wills. It lays down that the testator shall sign or shall affix his D mark to the Will or it shall be signed by some other person in his presence and by his direction. It further lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator and each of the witnesses shall sign the E Will in the presence of the testator. Section 68 of the Indian Evidence Act, 1872 (in short the “Evidence Act”) mandates examination of one attesting witness in proof of a Will, whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the court while dealing with a F case based upon a Will has been examined in considerable detail in several decisions of this Court ……. A Constitution Bench of this Court in Shashi Kumar Banerjee’s case succinctly indicated the focal position in law as follows: (AIR p. 531, para 4) “The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where

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however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature 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 suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes 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.”

16. A Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in earlier reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance specially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.: [1995] 2 SCR 585, it is the duty of the propunder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the Will, even if the H

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A Will might be unnatural in the sense that it has cut off wholly or in part near relations. ….. In Rabindra Nath Mukherjee and Anr. v . Panchanan Banerjee (dead) by LRs. and Ors.: AIR 1995 SC 1684, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly.” 24.6. In the case of Mahesh Kumar (supra), this Court indicated the error of approach on the part of the High Court while appreciating the evidence relating to the Will as follows:- “44. The issue which remains to be examined is whether the High Court was justified in coming to the conclusion that the execution of the will dated 10-2-1992 was shrouded with suspicion and the appellant failed to dispel the suspicion? At the outset, we deem it necessary to observe that the learned Single Judge misread the statement of Sobhag Chand (DW3) and recorded something which does not appear in his statement. While Sobhag Chand categorically stated that he had signed as the witness after Shri Harishankar had signed the will, the portion of his statement extracted in the impugned judgment gives an impression that the witnesses had signed even before the executant had signed the will.

45. Another patent error committed by the learned Single Judge is that he decided the issue relating to validity of the will by assuming that both the attesting witnesses were required to append their signatures simultaneously. Section 63(c) of the 1925 Act does not contain any such requirement and it is settled law that examination of one of the attesting witnesses is sufficient. Not only this, while recording an adverse finding on this issue, the learned Single Judge omitted to consider the categorical statements made by DW 3 and DW 4 that the testator had read out and signed the will in their presence and thereafter they had appended their signatures.

46. The other reasons enumerated by the learned Single Judge for holding that the execution of will was highly suspicious are based on mere surmises/conjectures. The observation of the learned Single Judge that the possibility of obtaining signatures of H

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 415 [DINESH MAHESHWARI, J.]

Shri Harishankar and attesting witnesses on blank paper and preparation of the draft by Shri S.K. Agarwal, Advocate on pre- signed papers does not find even a semblance of support from the pleadings and evidence of the parties. If Respondent 1 wanted to show that the will was drafted by the advocate after Shri Harishankar and attesting witnesses had signed blank papers, he could have examined or at least summoned Shri S.K. Agarwal, Advocate, who had represented him before the Board of Revenue. …..” 24.7. Another decision cited on behalf of the appellant in the case of Leela Rajagopal may also be referred where this Court summarised the principles that ultimately, the judicial verdict in relation to a Will and suspicious circumstances shall be on the basis of holistic view of the matter with consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature. This Court said,- “13. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us.” 24.8. We need not multiply the references to all and other decisions cited at the Bar, which essentially proceed on the aforesaid principles while applying the same in the given set of facts and circumstances. Suffice would be to point out that in a recent decision in Civil Appeal No. 6076 of 2009: Shivakumar & Ors. v. Sharanabasppa & Ors., decided on 24.04.2020, this Court, after H

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A traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a Will as follows:– “1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.

2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.

3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. D This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.

E 4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.

5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. H

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 417 [DINESH MAHESHWARI, J.]

6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind.’

7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.

8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will? F

9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.” G CONTEST OF THE MATTER BY RESPONDENT NO.1

25Copy pinpoint25. Having taken note of the principles which shall be the guiding factor in dealing with the main questions posed in this matter, we may examine the rival contentions. Before entering into the contentions H

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A relating to the suspicious circumstances concerning the Will in question, it would be appropriate to deal with and dispose of a preliminary objection of the learned counsel for the appellant as regards contest of the matter by respondent No.1. As noticed, it has been submitted with reference to Section 268 of the Succession Act, Order VIII Rule 10, Order XIV Rule 1(6) and Order XV Rule 2 CPC and the case of Bachhaj Nahar (supra) B that the status of respondent No.1 remains that of a defendant who has not filed the written statement and who is not at issue; and hence, the contentions urged on her behalf need no consideration and the evidence led by her remains inadmissible. The submissions have been countered with reference to the principles in H. Venkatachala Iyengar and Rani C Purnima Debi (supra) as also with reference to Order VIII Rule 5(2), Order VIII Rule 10 CPC and the decision in Balraj Taneja (supra). It is submitted that ultimately, the Probate Court is a Court of conscience and the respondent No.1, being the elder daughter of the testatrix, has every right to make submissions concerning the Will in question. In our view, the submission made on behalf of the appellant seeking exclusion D of respondent No.1 remains totally baseless and could only be rejected. 25.1. The objection on behalf of the appellant does not stand in conformity with the law declared in H. Venkatachala Iyengar and Rani Purnima Debi (supra) and scores of other decisions where this Court has consistently held that the probate proceeding is ultimately a E matter of conscience of the Court; and irrespective of whether any plea in opposition is taken or not, a propounder of Will is required to satisfy the conscience of the Court with removal of all the suspicious circumstances. By the very nature and consequence of this proceeding, filing or non-filing of written statement or objections by any party pales F into insignificance and is of no effect. The probate proceeding is not merely inter-partes proceeding but leads to judgment in rem and, therefore, even when no one contests, it does not ipso facto lead to grant of probate. The probate is granted only on proof of Will as also on removal of suspicious circumstances, if there be any, to the final satisfaction of the conscience of the Court. G 7 The referred provisions of CPC read as under:- Order VIII Rule 10: “10.Procedure when party fails to present written statement called for by Court.- Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the H

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 419 [DINESH MAHESHWARI, J.]

25.2. In view of the above, reference to the provisions of Order A VIII Rule 10, Order XIV Rule 1(6) and Order XV Rule 27 remains inapposite in relation to the proceeding before a Probate Court. We may hasten to observe that even in a regular civil suit, merely for want of written statement by a defendant, it is not necessary that a judgment would always follow in favour of the plaintiff without proof of the basic B facts and without making out a clear case of right to relief. Similarly, the decision in the case of Bachhaj Nahar (supra) that relief cannot be granted in any Court without requisite pleadings has hardly any application to the question at hand. 25.3. In the case of Balraj Taneja (supra), this Court examined the provisions contained in sub-rule (2) of Rule 5 of Order XVIII of C CPC8 and said that,- “11. Sub-rule (2) provides that if the defendant has not filed his written statement, it would be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint. The rule further proceeds to say that notwithstanding that the facts stated in the plaint are treated as admitted, the court, though it can lawfully pass the judgment, may before passing the judgment require such fact to be proved….”

suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.” Order XIV Rule 1(6): “1. Framing of issues.- *** *** *** (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.” Order XV Rule 2(1): F “2. One of several defendants not at issue.- (1) Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendants and the suit shall proceed only against the other defendants. *** *** ***” 8 The referred provisions of CPC read as under: Order VIII Rule 5(2) G “5. Specific denial.- *** *** *** (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. *** *** ***” H

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KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 421 [DINESH MAHESHWARI, J.]

SUSPICIOUS CIRCUMSTANCES CONCERNING THE A WILL IN QUESTION

26Copy pinpoint26. While examining the relevant factual aspects and circumstances of this case on the anvil of the principles aforesaid, we may usefully observe that in the case of Leela Rajagopal (supra), this Court found justified the concurrent findings on due execution of Will B and, in the context of facts, participation of the beneficiary in execution of the Will and his acquaintance with one of the attesting witness were found to be reasonably explained. However, significantly, in the said case, this Court also cautioned against repeated reappreciation of evidence, particularly in the appeal lodged only by way of special leave, in the following words:- C

“17. Before parting we would like to observe that the very fact that an appeal to this Court can be lodged only upon grant of special leave to appeal would indicate the highly circumscribed nature of the jurisdiction of this Court. In contrast to a statutory appeal, an appeal lodged upon grant of special leave pursuant to a D provision of the Constitution would call for highly economic exercise of the power which though wide to strike at injustice wherever it occurs must display highly judicious application thereof. Determination of facts made by the High Court sitting as a first appellate court or even while concurring as a second appellate court would not be reopened unless the same gives rise to questions of law that require a serious debate or discloses wholly unacceptable conclusions of fact which plainly demonstrate a travesty of justice. Appreciation or reappreciation of evidence must come to a halt at some stage of the judicial proceedings and cannot percolate to the constitutional court exercising jurisdiction under Article 136.” (emphasis supplied) 26.1. In the present case too, the Trial Court has returned the findings against the appellant after due appreciation of evidence and the G High Court has affirmed such findings after independent and thorough examination of evidence. There appears hardly any scope for disturbing such concurrent findings by entering into the process of reappreciation of entire evidence yet, in view of the submissions made and in the interest of justice, we have gone through the material on record to find if there H

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A be any such perversity which might result in serious miscarriage of justice. We find none.

27Copy pinpoint27. As noticed, there has not been any question on the testamentary capacity and soundness of mind of the testatrix; and her handwriting as also signatures on the Will in question are also beyond controversy. B However, the Trial Court and the High Court have concurrently found some such suspicious circumstances which are of material bearing and which have remained unexplained. Put in a nutshell, the unexplained suspicious circumstances so found are: (a) that appellant, the major beneficiary, played an active role in execution of the Will in question and attempted to conceal this fact before the Court; (b) that there had not C been any plausible reason for non-inclusion of the only son and other daughter of the testatrix in the process of execution of the Will and for excluding them from the major part of the estate in question; (c) that there was no clarity about the construction supposed to be carried out by the appellant; (d) that the manner of writing and execution of the Will D with technical and legal words was highly doubtful; and (e) that the attesting witnesses were unreliable and there were contradictions in the statements of the witnesses. Because of these major circumstances coupled with various supplemental factors, the Trial Court and the High Court felt dissatisfied on the root question as to whether the testatrix duly executed the Will in question after understanding its contents. E

28Copy pinpoint28. There is no doubt that any of the factors taken into account by the Trial Court and the High Court, by itself and standing alone, cannot operate against the validity of the propounded Will. That is to say that, the Will in question cannot be viewed with suspicion only because the appellant had played an active role in execution thereof though she is the major beneficiary; or only because the respondents were not included in the process of execution of the Will; or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the appellant; or only because one of the attesting witnesses being acquaintance of the appellant; or only because there is no evidence as to who drafted the printed part of the Will and the note for writing the opening and concluding passages by the testatrix in her own hand; or only because there is some discrepancy in the oral evidence led by the appellant; or only because of any other factor taken into account by the Courts or relied upon by the respondents. The relevant consideration would be about the quality and nature of each of these factors and then, H

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 423 [DINESH MAHESHWARI, J.]

the cumulative effect and impact of all of them upon making of the Will A with free agency of the testatrix. In other words, an individual factor may not be decisive but, if after taking all the factors together, conscience of the Court is not satisfied that the Will in question truly represents the last wish and propositions of the testator, the Will cannot get the approval of the Court; and, other way round, if on a holistic view of the matter, the B Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there.

29Copy pinpoint29. Keeping the applicable principles in view, we may examine the factors and circumstances which are suspicious in character and C their overall impact on the document in question. 29.1. While entering into the facts and circumstances related with the Will, profitable it would be to recapitulate the background and the set up in which the contested Will is said to have been executed. The immovable property in question at No. D-179, Defence Colony, New D Delhi was originally of the ownership of father of the contesting parties, husband of testatrix. The ground floor of this property was given in gift to the appellant on 25.01.2001, whereas the first floor and the other portion/s came to the testatrix by way of the Will of her husband dated 14.02.2001. The husband of testatrix expired on 20.10.2002. The appellant, married daughter of the testatrix, was admittedly living in a different locality, that is, at Panchshila Park for 20-22 years, whereas son of the testatrix, who was serving in Army, remained posted outside and was lastly residing in Shimla. The testatrix was a cancer patient and was under regular treatment in an Army Hospital at Delhi. Significantly, the testatrix was residing at the said ground floor portion of the building in question (which had already become property of the appellant by virtue of the gift by her father). The respondent No.1, the widowed daughter of the testatrix, was residing at the first floor of the same building with her own daughter. Admittedly, the said first floor of the house was the property of testatrix by virtue of the Will of her husband. It is not a G matter of much dispute that respondent No.1, while living in the same building, was taking care of the testatrix and was even taking her to Army Hospital for treatment. 29.2. In the given set-up, a basic question immediately crops up as to what could be the reason for the testatrix being desirous of providing H

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A unequal distribution of her assets by giving major share to the appellant in preference to her other two children. The appellant has suggested that the parents had special affection towards her. Even if this suggestion is taken on its face value, it is difficult to assume that the alleged special affection towards one child should necessarily correspond to repugnance towards the other children by the same mother. Even if the parents had special liking and affection towards the appellant, as could be argued with reference to the gift made by the father in her favour of the ground floor of the property in question, it would be too far stretched and unnatural to assume that by the reason of such special affection towards appellant, the mother drifted far away from the other children, including the widowed daughter who was residing on the upper floor of the same house and who was taking her care. In the ordinary and natural course, a person could be expected to be more inclined towards the child taking his/her care; and it would be too unrealistic to assume that special love and affection towards one, maybe blue-eyed, child would also result in a person leaving the serving and needy child in lurch. As noticed, an unfair disposition of property or an unjust exclusion of the legal heirs, particularly the dependants, is regarded as a suspicious circumstance. The appellant has failed to assign even a wee bit reason for which the testatrix would have thought it proper to leave her widowed daughter in the heap of uncertainty as emanating from the Will in question.Equally, the suggestion about want of thickness of relations between the testatrix and her son (respondent No.2) is not supported by the evidence on record. The facts about the testatrix sending good wishes on birthday to her son and joining family functions with him, even if not establishing a very great bond between the mother and her son, they at least belie the suggestion about any strain in their relations. Be that as it may, even if the matter relating to the son of testatrix is not expanded further, it remains inexplicable as to why the testatrix would not have been interested in making adequate and concrete provision for the purpose of her widowed daughter (respondent No.1). 29.3. The aforesaid factor of unexplained unequal distribution of the property is confounded by two major factors related with making of the Will in question: one, the active role played by the appellant in the process; and second, the virtual exclusion of the other children of testatrix in the process. As noticed, an active or leading part in making of the Will by the beneficiary thereunder has always been regarded as a H circumstance giving rise to suspicion but, like any other circumstance, it

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 425 [DINESH MAHESHWARI, J.]

could well be explained by the propounder and/or beneficiary. In the present case, it is not in dispute that out of the three children of testatrix, the appellant alone was present at the time of execution of the Will in question on 20.05.2003. As noticed, at the relevant point of time, the appellant was admittedly living away and in a different locality for about 20-22 years, whereas testatrix was residing at the ground floor of the building and the respondent No.1 was at the first floor. Even if we leave aside the case of the respondent No.2 who was living in Shimla, there was no reason that in the normal and ordinary course, the testatrix would not have included the respondent No.1 in execution of the Will in question, particularly when she was purportedly making adequate arrangements towards the welfare of respondent No.1. In other words, if the Will in question was being made without causing any prejudice to the respondent No.1, there was no reason to keep her away from this process. Admittedly, the Will in question was not divulged for about three years. Therefore, the added feature surrounding the execution of the Will had been of unexplained exclusion of the respondent No.1 from the process. D 29.4. Apart from the above, active participation of the appellant in making of the Will in question cannot be left aside as one of the minor factors for the reason that the appellant indeed attempted to project a face of innocence by suggesting that the testatrix did not discuss the Will with her; that she was not aware as to who drafted the Will and where was it typed; and that she came to know about the Will only on E 20/21.05.2003. The appellant even stated that she did not call the witnesses and that the testatrix herself might have called them. The witness PW- 2 has clearly contradicted the appellant by deposing that on 18.05.2003, it was the appellant who invited him to her mother’s place. Thus, the appellant, by her conduct of attempting to avoid the fact that she was aware of making of Will, at least two days before its execution, has only strengthened the suspicion arising because of her active participation in execution of the Will while keeping the other children of the testatrix excluded from the process. 29.5. Yet further, when we look at the Will in question itself and examine the evidence adduced in regard to its execution, a few more factors of suspicion emerge on the face of the record. 29.5.1. In regard to the contents and frame of the document in question, learned counsel for the appellant has submitted that greater degree of presumption that arises in the case of a “holograph” Will, as H

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A enunciated in the case of Joyce Primrose Prestor (supra), is applicable to the present case too, where the significant contents relating to the particulars of the person and bequeath, in the opening and concluding passages, are duly written in her own hand by the testatrix. The submissions so made on behalf of the appellant carry their own shortcomings and demerits for the reason that the Will in question does not directly answer to the description of a “holograph” Will because, except for the opening and concluding passages, the entire Will is in electronic print. The core of bequeathing part is also in print and not in handwriting. In the case of Joyce Primrose Prestor, the entire Will was handwritten, which is not the case here. Coupled with this remains the admitted fact that even the handwritten portions are not of the diction of the testatrix herself. She had only copied them from a note available with her; and it is apparent from the document that such handwritten portions are jotted down on the base lines drawn on the paper. 29.5.2. Thus, practically, it was a case of the testatrix merely copying, on the dotted lines, the text already given to her. The sanctity attached to a bequeath in the handwriting of the testator presupposes a co-ordinated work of a free hand and a free mind, that is, the hand writes what comes out of and given by the mind. In the present case, it is difficult to be satisfied that what is found written in hand by the testatrix had been dictated by her own mind so as to make it an expression of her own free will. 29.5.3. Moreover, the handwritten portions carry such formal and legal expressions like “testament” and “set and subscribed my hand”, which are the tools of the language employed by a person who is conversant with legal format and requirements for execution of such a F document; and, ordinarily, a layperson like the testatrix is not expected to be conversant with them. The printed portion also carries the expressions like “codicil”, “give, devise and bequeath”, which are not the expressions of a layperson. In the given circumstances, the want of evidence as to who drafted the printed portion and the said note (for copying on the dotted lines) becomes an added factor towards suspicion as to whether the contents of the document in question are, in fact, expressive of the actual desire of the testatrix towards succession of her property. 29.5.4. This set of suspicious circumstances concerning the process of execution of the document in question reaches to impenetrable

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 427 [DINESH MAHESHWARI, J.]

finale by another major part of contradictions in oral evidence. The A appellant asserted in her testimony that the testatrix discussed the contents of the Will with the attesting witnesses but both of them (PW-2 and PW- 3) consistently maintained that the contents were not discussed with them. Thus, the appellant has failed to clear the doubts as to whether what is found written in the document in question (both by hand and in print) carry and convey the last wish of the testatrix.

30Copy pinpoint30. Going yet further, when the core contents of the document in question are examined, what we find is another load of several unclear doubts and variety of uncertainties. We would hasten to observe that as per Section 81 of the Succession Act, if there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to the intentions of the testator shall be admitted. Thus, everything related with the true intention of testatrix in the present case is to be gathered from the contents of the Will in question itself. 30.1. As per the stipulation in Clause 1 of the bequeathing contents, the first floor, terrace and all other properties except the ground floor are given to the appellant with directions that she would carry out either of the two options as deemed proper, namely, either to construct on the terrace of the building such residential facility as may be permissible under the Municipal Building Bye-laws at the time of demise of the testatrix and to hand over possession of the construction to respondent E No.1 while retaining terrace rights thereon; or in the alternative, to demolish the entire building and carry out such construction as may be permissible under the Municipal Building Bye-laws and become exclusive owner thereof, save and except that the highest floor of such building shall go to the respondent No.1, while again, the terrace rights shall remain with the appellant. At the first blush, it may appear as if by these stipulations, the testatrix was duly taking care of the interests of respondent No.1. However, a closer look gives rise to manifold questions which carry no plausible answer. 30.2. In the said stipulations, neither any time frame is provided for the appellant to carry out the expected construction nor the nature, quality and extent of such construction has been spelt out. It is also not clear as to what would happen in the event of the appellant not carrying out such construction, that is, as to whether she would stand divested of the property already bequeathed? H

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A 30.3. Apart from all the aforesaid aspects, the fundamental fact remains that none of the stipulations could have been legally made by the testatrix, nor they could be enforced in any proceedings. This is for the reason that nowhere in the document any provision has been made for carrying out such construction out of the estate of the testatrix. It remains questionable if the testatrix was entitled to issue such directions in the testament, which could have been executed only through the property of the legatee and not from her own estate? 30.4. Yet further, the stipulation in the alternative in sub-clause (b) of Clause 1 of the Will remains non-est on the face of the record. Admittedly, the ground floor of the building in question is the property of the appellant for having been gifted by her father. The direction for demolition of the entire building as contained in the said sub-clause (b) includes in it the direction to demolish the ground floor too. The testatrix could not have given any such direction because that amounts to intrusion into the property rights of the appellant in such a manner so as to direct her to pull down her own property and lose value thereof and then, to invest further by raising a new construction. 30.5. Moreover, whether as per sub-clause (a) or as per sub- clause (b), if at all the appellant were to make any such construction as expected, it would become her own property; and the question would yet remain as to how the respondent No. 1 shall enforce conveyance of the appellant’s title to herself? 30.6. It remains trite that no one can convey a better title than what he had; as expressed in the maxim: ‘Nemo dat quod non habet’9. The testatrix never had any right over the property belonging to the appellant and could not have conveyed to the respondent No.1 any property which was of the ownership of the appellant or which might be acquired or raised by the appellant in future by her own funds. On this ground alone, the Will in question is required to be considered void as per Section 89 of the Succession Act, when the principal bequeathing stipulation in the Will suffers from uncertainty to the hilt. G 30.7. A close look at the Will in question brings forth yet another interesting, nay disturbing, feature of its contents. Whilst in the first 9 See, for example, Narinder Singh Rao v. Air Vice-Marshal Mahinder Singh Rao & Ors.: (2013) 9 SCC 425, where the testatrix had bequeathed property in excess to her share and this Court held that the bequest has to be treated only to the extent of the H share held by the testatrix.

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 429 [DINESH MAHESHWARI, J.]

alternative in sub-clause (a) of Clause 1 of the bequeathing part of the A Will, the testatrix expected that the appellant shall construct “residential facility ofsuch covered area as is permissible under the Municipal Building Bye-laws at the time of my demise”, whereas, in sub-clause (b) thereof, the testatrix provided the alternative that the appellant shall carry out new construction “as is permissible under the Municipal B Building Bye-laws”. The expression “at the time of my demise”, as occurring in sub-clause (a) does not occur in sub-clause (b). Now, it remains elementary that if a construction is to be raised, it has to conform to the Building Bye-laws or Regulations as in force and as applicable at the relevant time of construction. The testatrix could not have overridden the operation of law by providing that the construction could be raised as C permissible under the Bye-laws at the time of her demise. If that was not the meaning of sub-clause (a), then it remains questionable as to why the expression “at the time of my demise” at all occurred there and the question further remains as to why the same was omitted in sub- clause (b)? D 30.8. Therefore, literal reading of the Will in question makes it clear that the purported provision for the respondent No.1 is illusory and an eye wash because on the practical side, the provision is inexecutable and unenforceable; and the respondent No.1 is not likely to get anything thereunder. E

31Copy pinpoint31. In the ultimate analysis, we are satisfied that the Will in question is surrounded by various suspicious circumstances which are material in nature and which have gone unexplained. The cumulative effect of these suspicious circumstances is that it cannot be said that the testatrix was aware of and understood the meaning, purport and effect of the contents of the Will in question. The appellant, while seeking probate, has not only F failed to remove and clear the aforesaid suspicious circumstances but has even contributed her own part in lending more weight to each and every suspicious circumstance. The Will in question cannot be probated from any standpoint. The curious case of alleged third page of the Will G

32Copy pinpoint32. For what has been discussed hereinabove, it is but evident that the Will in question is besieged by multiple suspicious circumstances, which have not been cleared; rather every suspicious circumstance is more baffling than the other. Even this is not the end of the matter. H

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33Copy pinpoint33. There remains yet another, and perhaps the most confounding part of the matter, which leaves nothing to doubt that the prayer for probate of the Will in question could only be declined. It is the curious case of alleged third page of the Will in question and the vacillating stand of the appellant in that regard. This aspect, perforce, needs a little elaboration as infra. B 33.1. As noticed in the preceding paragraph 13 and its sub- paragraphs, during the course of trial, on 24.03.2008, the respondent No. 1 moved an application under Section 151 CPC seeking opportunity to further cross-examine the appellant. In this application, the respondent No. 1, inter alia, attempted to raise a plea relating to the alleged third C page of the Will in question. This application was rejected by the Trial Court on 25.03.2008, interalia, with the observations that the story of this third page, as coming on record for the first time cannot be believed, particularly when nothing in that regard was asked in the cross- examination of PW-1. D 33.1.1. Thereafter, the respondent No. 1 filed another application seeking permission to file her written statement and seeking condonation of delay. Again, the respondent No. 1 attempted to refer to the said third page of the Will, inter alia, with the following submissions:- “4. The Respondent No. 2 submits that due to her lack of knowledge about the existence of the third-page of the purported Will and being all through assured by the Petitioner that the Respondent No. 2 would get her share as per Will, the Respondent No. 2 did not file objections at the initial stage.

5. The Respondent No. 2 submits that the purported Will in question was lying in the custody of the Petitioner and she can only give proper clarification and explanation about the handwritten portion thereon and with regard to the third-page of the said Will, which the Petitioner did not produce before this Learned Court with some ill-motive.” G In reply to the aforesaid part of the application, the present appellant stoutly denied the existence of any third page of the Will and, inter alia, submitted as under: “4. That para No. 4 of the application is wrong and hence denied. It is denied that there is any third page of the Will, as alleged or otherwise. H This Hon’ble Court has already dealt with this false contention of the

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 431 [DINESH MAHESHWARI, J.]

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A The Trial Court even observed that distribution of movable assets of testatrix was complete during her lifetime and the only subject-matter remaining was the immovable property and the bank account. 33.3. In continuity with what has been observed hereinabove, we may also add that prima facie, the suggestion about any such third page B of the Will made by the testatrix appears doubtful because the Will is question is drawn up in two pages; the testatrix has specifically written in her own hand that the Will is so made in two pages; and the document effectively ends at the bottom of the second page with signatures of testatrix and two attesting witnesses. C 33.3.1. However, all the observations and findings of Trial Court (as regards the alleged third page of the Will in question) and even the prima facie impression given by the document Ex.PW1/H against existence of any such third page of Will are shaken to the core when we take into account the strange turnabout and volte-face of the appellant in the High Court, where it was asserted on her behalf that she had indeed acted as per the “directions” of the testatrix in the said third page!

34Copy pinpoint34. The above-noted strange shift in stand of the appellant, where she asserted having acted as per the said third page had its own background. As noticed, during the course of trial, a fact surfaced that before filing the petition for probate, the appellant had made payment of a sum of Rs. 25,000/- to the daughter of the attesting witness PW-3; and the Trial Court even observed that the possibility of this witness being bribed was not ruled out. This very aspect was seemingly pressed again before the High Court by the respondents. While countering such contentions made on behalf of the respondents as also while asserting that the respondent No. 1 was not fair in her conduct, the appellant asserted before the High Court that though this third page was a creation of the respondents but, she (the appellant) had acted according to the desire of the testatrix as stated in the said third page. It was specifically stated on behalf of the appellant that payments were made by way of four cheques, in the sum of Rs. 25,000/- apiece, in favour of the daughter of PW-3, the daughter of the respondent No. 1 and two sons of her own (the appellant) ‘in compliance with the directions in the said “3rd page”, which is a separate directive of the deceased de hors the Will’. It was further asserted on behalf of the appellant that she had H ‘faithfully acted upon the directions’ set out in the said third page and handed over the car to the daughter of respondent No. 1 and even gave

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 433 [DINESH MAHESHWARI, J.]

the jewelleries to the respondent No. 1 herself! It was sought to be A argued on behalf of the appellant that the said third page rather proves the validity of the Will in question. 34.1. What has been noted hereinabove, being the entirely different stand of the appellant regarding the said third page, is specifically found in the written arguments filed on her behalf in the High Court. The B relevant part of such written arguments may be usefully extracted as under:- “1. That in the first place there is no challenge from either of the 2 Respondents to the signatures and the hand writing of the Testatirix on the Will; indeed there is sufficient admission of the validity of the Will in the following manner: ADMISSIONS (a) Respondent No. 2 files no objections to the Probate Petition. (b) Respondent No.2, who had been granted the license to reside in the suit property, clandestinely attempts its alienation, constraining the Petitioner to file a suit for injunction (Annexure A-14 on page 176 — please see page 181 for the prayer), as per legal advice received as against an Application for restraint in the Probate Petition itself. E Respondent No.2 retaliates by committing a volte face and filing an Application for permission to further cross examine the Petitioner with regard to (i) the holograph portion of the Will, (ii) the existence of a third page to the Will, (iii) doubting the fatherhood of the Petitioner and (iv) establishing the extent of her rights in the suit property under the Will. F The Application is dismissed vide Order dated 25.03.2008 (Annexure A-7 on page 93) but the flip-flop stands of the Respondent No.2 may be noted to deny any credence to her contradictory submissions in the instant Appeal and the contention of the existence of a 3rd page to the Will tantamounting to the G admission of the validity of the 2 paged Will propounded by the Petitioner. The so called “3rd page” is Annexure A-8on page 97, which does not form part of the Will but was signed separately by the H

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A Testatrix and has indeed been acted upon to the benefit of, amongst others, Respondent No.2 herself and her daughter. It is not comprehensible as to how then the Respondent’s challenge the Petitioner’s issuance of the 4 Nos. cheques, all in the sums of Rs.25,000/- apiece favouring Gen. Ahluwalia’s daughter, B Respondent No.2’s daughter and the Petitioner’s 2 sons in compliance with the directions in the said “3rd page”, which is a separate directive of the deceased de hors the Will. Also in compliance with the said directives the Respondent No.2’s daughter has been given the car belonging to the deceased by the C Petitioner after the demise of the deceased. **** **** ****

12. That at the hearing R-3 relies upon a litany of FALSEHOODS in order to advance her case against the Will, as set out hereunder:

D Sr.No. Submissions at the Bar Manifest Falsehood **** (ii) The Petitioner has given The averment is once again false to Rs.25,000/- to the daughter of the knowledge of R-3 in as much as one of the witnesses to the it is he and R-2 who have Will in order to influence propounded a paper described as him. “the 3 rd page” of the Will in question wherein the Testatrix has directed the manner of the distribution of her movable assets, though not in the form of a Will, but the Petitioner has faithfully acted upon the directions set out therein (Anne xure A-8, page 97) and paid Rs.25,000/- not only to the daughter of the witness Mandira Ahluwa lia but has also paid a sum of Rs.25,000/- besides various jewelries and a car to R-2’s daughter Nomita Mehta as also various jewelries to R-2 herself as per the directions contained in the said “3 rd page”

13. That at the hearing, R-2, taking a leaf out of R-3’s book, relies upon a further litany of FALSEHOODS in order to advance her case against the Will, as set out hereunder:

KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 435 [DINESH MAHESHWARI, J.]

Sr.No. Submissions at the Bar Manifest Falsehood A *** (iv) The Petitioner’s distribution The false allegation is bellied by the of moneys and other movable so-called “3 rd page” of the Will assets left behind by the propounded by R-2 & R-3 and the Testatrix arouses suspicion Petitioner has made the various that she was either “buying payments and disbursed various out” Respondent No.2 and movables after the demise of the one of the attesting witnesses Testatrix faithfully in terms of the B or misappropriating the joint said page which was duly signed by bank account held by the the Testatrix but did not form part Testatrix with the Petitioner. of the “2 paged Will” or can be deemed to be a codicil but the Petitioner honoured the dictate of the Testatrix as set out on a piece of paper signed by her. *** *** ***” C

(underlining supplied for emphasis)

34.2. In paragraph 49 of the impugned judgment, the High Court noticed such a stand of the appellant, seeking to rely on the very same disputed third page of the Will and observed that this third page was D never produced by the appellant; rather when the respondent No. 2 sought its production, the appellant denied the same. The High Court also observed that the said third page of the Will was never proved before the Trial Court; and even if it was assumed to be existing, the suspicious circumstances were not dispelled. E

35Copy pinpoint35. In our view, though the High Court has rightly observed that even if this third page is assumed to be existing, it does not remove the suspicious circumstances but the High Court has stopped short of going a little further and has not noticed that volte-face of the appellant regarding this third page tilts the preponderance of probabilities heavily, rather conclusively, against her. Noteworthy it is that the said third page has not been exhibited in evidence. The flip-flops of the appellant regarding this third page compels us to examine several of the possibilities concerning other assets of the testatrix. 35.1. As noticed, the Will in question (Ex.PW1/H) is drawn on two pages and is complete in itself and does not leave any scope for any other codicil concerning the estate of the deceased, particularly when bequeath has been made not only of the immovable property and the bank account but also as regards the other assets of testatrix in the residuary clause, which reads as under: – H

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KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS. 437 [DINESH MAHESHWARI, J.]

36Copy pinpoint36. Hence, to cap all the suspicious circumstances, the aforesaid equivocal stand of the appellant, as regards the third page of the Will and her assertion of having acted in accordance with the “directions” in the said third page of the Will, effectively knocks the entire case of the appellant down to the bottom. The suspicions arising because of the facts and factors noticed hereinbefore, including the unnatural exclusion of the respondents from estate; uncertain and rather inexecutable stipulation about construction by the appellant for the purpose of the respondent No.1; active role played by the appellant in execution of the Will and yet seeking to avoid the factum of her role by incomplete and vague statements; and the witnesses having contradicted the appellant on material particulars etc., have not only gone unexplained but are confounded beyond repair with such vacillating stand of the appellant regarding the said third page of the Will of the testatrix. Summation

37Copy pinpoint37. The discussion foregoing is sufficient to find that thick clouds of suspicious circumstances are hovering over the Will in question which have not been cleared; rather every suspicious circumstance is confounded by another and the curious case of the alleged third page of the Will effectively and completely demolishes the case of the appellant. Put differently, it is difficult to be satisfied that what is literally coming out of the document in question had been the last wish and desire of the testatrix as regards succession of her estate. On the contrary, we find enough and cogent reasons to affirm the material findings of the Trial Court and the High Court that it cannot be said that the testatrix executed and signed the document in question as her Will after having understood the meaning, effect and purport of the contents. F

38Copy pinpoint38. The result, inevitable, is that this appeal deserves to be dismissed. With the concurrent findings having been affirmed and when the appellant is found wanting in forthrightness at various stages of proceedings, costs ought to follow the result of dismissal of this appeal. Conclusion G

39Copy pinpoint39. Accordingly, and in view of the above, this appeal fails and is, therefore, dismissed with costs quantified at Rs. 50,000/- (rupees fifty thousand), payable by the appellant equally to the respondent No. 1 and respondent No. 2. H Ankit Gyan Appeal dismissed.