* IN THE HIGH COURT OF DELHI AT NEW DELHI + Test Cas No.26 of 1987 Decided on : 3rd July, 2012
PARMESHWAR PRASAD (since deceased)
Lord Northbrook & Ors. ...... Petitioners Through: Dr. A.M. Singhvi & Mr. Rajiv Nayyar, senior Advocates with Mr. Anish
STATE & ORS. ...... Respondents Through: Mr. T.K. Ganju, senior Advocate with Mr. Manish Singhvi, AAG and
Mr. Aditya Ganju, Advocates for
the State of Rajasthan.
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This judgment shall dispose of the Probate Petition filed by the petitioners under Section 276 of the Indian Succession Act, 1925 for grant of probate on the basis of the Will dated 30.10.1985 read with Codicil dated 7.11.1985. This petition was initiated almost 25 years back and more than thirty Judges had an occasion to deal with the matter. Though ideally the petition ought to have been decided within a period of Test Cas No.26/1987 Page 1 of 91 three to four years or so but there are various factors which have caused the delay. Final delay has been on account of the voluminous record, some of which was in a very bad condition.
2. Any how, briefly stated, the facts of the case are that Late Raja Bahadur Sardar Singh of Khetri (deceased/testator) had very high credentials. He was a Bar at law from England, a member of the Constituent Assembly, a Rajya Sabha Member and also Ambassador to Laos and thus, a highly educated person. He died on 28.1.1987 as a childless widower and at that time, he was a resident of 5, Sardar Patel Marg, New Delhi. It is alleged that being a childless widower with no legal heirs and with a high sense of social service, he bequeathed his property to charity for the benefit of public at large, by virtue of Will dated 30.10.1985. For this purpose, he got the Will drafted by his personal friend, Daniel Latifi, Senior Advocate and got the same attested by two persons, one P.N. Khanna, his Chartered Accountant and R.K. Singh, junior of Daniel Latifi. He is further stated to have got it deposited with the Registrar at Tis Hazari Courts. On 7.11.1985, he allegedly Test Cas No.26/1987 Page 2 of 91 executed a Codicil. The alleged Will of the deceased/Testator reads as under:-
"THIS IS THE LAST WILL AND
TESTAMENT OF ME, Raja Bahadur
Sardar Singh of Khetri, aged 65,
residing at No.5 Sardar Patel Road,
AND I HEREBY CANCEL AND REVOKE
all my previous Wills and Codicils.
A. I am a citizen of India, subject
to the Hindu Law of Succession,
and am, under the appropriate
provisions of the Indian
Succession Act and other laws,
fully competent to make this Will
and to create the Trusts herein.
B. I have no relative of the class
mentioned in Section 118 of the
Indian Succession Act.
Nevertheless, to avoid any false
claims, it is my intention to have
this Will deposited in safe
custody with the appropriate
authority as provided by law.
C. I am possessed of immovable
and movable assets as
appear from my Wealth Tax
No Wealth Tax returns attached.
Test Cas No.26/1987 Page 3 of 91 NOW
1. I hereby appoint the following
persons to be and to act Jointly
as Executors hereof, provided
that they may by unanimity,
appoint from time to time one of
their number as Managing
(a) Lady Olga Manning of
Hampton Court palace,
East Molesey, Surrey.
(b) Mr. Daniel Latifi, Senior
Advocate, A-20, Neeti
Bagh, New Delhi-110049
(c) Mr. Romesh Thapar, 19,
Kautilya Marg, New Delhi-
(d) Mr. Parmeshwar Prashad,
Mgr. Khetri Investment
Corporation (P) Ltd., 1/9,
Rani Jhansi Road, New
2. I also appoint the said Executors
to be Trustees of the Trust
3. I hereby bequeath and given
unto and to my said Executors
and Trustees, (save and except
such specific assets on
properties of mine as I may
exclude herefrom by any specific
Test Cas No.26/1987 Page 4 of 91 legacy that I may, hereafter
make in favour of any person, by
this Will or by any Codicil hereto
that I may make). ALL THOSE
my properties, movable or
immovable, anywhere, upon
trust as below appears.2
4. The name of the Trust shall be
the KHETRI TRUST.
5. The Trusts herein are:
The promotion of Education, that
is to say the advancement of the
study of science, literature and
the arts, by the grant of
scholarships to deserving
students for study in India or
abroad, by the establishment of
libraries, reading rooms, schools,
research centres or other
institutions, as funds allow and
as the Trustees think fit.
Provided that the Trustees shall
be competent, with the sanction
of the High Court, to vary,
enlarge or restrict the objects of
6. The Executors and Trustees shall
be entitled to remuneration for
their services to these Trusts at
'as below appears' refers to the details of the properties which are not given. Test Cas No.26/1987 Page 5 of 91 such amount for their services to
these Trusts at such amount as
they may fix, not exceeding
Rs.3,000/- per month. This
may, in appropriate
circumstances, be increased with
the sanction of the High Court,
upon application made in that
behalf. Whenever she is in
India, Lady Manning shall be
entitled to free residence and
travel at and between Khetri
House New Delhi, Khetri house
Jaipur and Sukh Mahal Khetri,
with arrangements and facilities
as she enjoyed in my lifetime.
7. The number of Trustees shall not
at any time be fewer than three
not more than five. In the event
of the death, resignation or
incapacity of any Trustee, the
surviving or remaining Trustees
shall be empowered to appoint a
trustee or trustees in this behalf.
Provided that on the death,
resignation or incapacity of Lady
Manning, named in paragraph 1
hereinabove, the Hon Francis
Baring, s/o Lord & Lady
Northbrook, East Stratton
House, East Stratton,
Winchester, Hants, residing at
Flat No.26, 333 Kings Rd.,
London SW3 shall replace here
as Executor and Trustee.
Test Cas No.26/1987 Page 6 of 91 IN WITNESS WHEREOF I HAVE
HERETO SET MY HAND THIS
THIRTIETH DAY OF OCTOBER 1985 AT
NEW DELHI, in the present of
witnesses known to me whose names,
addresses and signatures appear
RAJA BAHADUR SARDAR
SINGH OF KHETRI
14/15 F, Connaught Place,
(Ravi Karan Singh)
C/o 61, Supreme Court
3. According to the Will, Lady Olga Manning of Hampton Court Palace, East Molesey Surrey, U.K., Daniel Latifi, Senior Advocate, r/o A-20, Neeti Bagh, New Delhi, and Parmeshwar Prasad, Manager, Khetri Investment Corporation (P) Ltd., r/o 1/9, Rani Jhansi Road, New Delhi, were named as Executors of the said Will.
Test Cas No.26/1987 Page 7 of 91
4. Parmeshwar Prasad, petitioner No.1 died on 09.3.2003, petitioner No.2, Ramesh Thapar died in 1987, petitioner No.3, Lady Olga Manning died on 17.9.1993 and as per the clause 7 of the Will, the executor and the trustee were replaced by Lord Northbrook and he was substituted as petitioner vide order dated 24.2.1995 in I.A. no.1695/95. Lord Northbrook is the surviving Executor and currently the petitioner before this Court, though no formal order for change of title of the case has been passed nor any amended memo of parties has been filed. But as Parmeshwar Prasad has died, Lord Northbrook‟s name is substituted in exercise of inherent powers of this Court to put the record straight. His statement before this Court was recorded on 25.9.2004, when he was personally present in Court. He had executed a Power of Attorney in favour of one Prithvi Raj Singh to represent him in Court as he was resident of U.K. Daniel Latifi, Senior Advocate also resigned as Executor on 15.2.1987, before this petition was filed.
Test Cas No.26/1987 Page 8 of 91
5. According to the Will, as averred by the Executors, the entire properties, situated anywhere, movable and immovable, belonging to the Raja Bahadur, were bequeathed in favour of a Trust by the name of Khetri Trust. The said Trust was created for the benefit of the public at large and for purpose of promotion of education, that is to say, advancement of studies of Science, Literature and Arts, by the grant of scholarships to deserving students for study in India or abroad, by the establishment of libraries, reading rooms, schools, academics, laboratories, research centres or other institutions, as the funds would allow and the Trustees would think fit. All the Executors and the Trustees were to be paid remuneration for their services at a fixed rate, not exceeding Rs.3,000/- per month.
6. After the death of Raja Bahadur, the three Executors, namely, Parmeshwar Prasad, Ramesh Thapar and Lady Olga Manning filed a petition jointly as Executors of the Will. The deceased/testator died on 28.1.1987 and Daniel Latifi resigned from the Trust, in February, 1987, and the petition Test Cas No.26/1987 Page 9 of 91 was filed in March, 1987. No cogent reason for resignation has been given.
7. So far as the Khetri Trust is concerned, it was created on 31.1.1987. The Trust Deed was executed on 14.4.1987. Eminent persons like Bhaskar Mitter-Chairman Exide Ltd., Mr. Narottam Sehgal-ICS Former Home Secretary to Govt. of India, Dr. Romila Thapar, the Eminent Historian, Vikram Lal- Chairman Eicher Ltd., have held the post of Trustees of the Khetri Trust. None of the Trustee was alleged to have been made as the sole controller. Over a period of time, these Trustees changed and as on 8.7.2003 Lord Northbrook was made the Executor Trustee of the Will, being son of Lady Olga Manning, apart from Maharaj Gaj Singh of Jodhpur, Chairman, Prithvi Raj Singh, Managing Trustee and Ajit Singh.
8. The Trustees of the Trust may have interest in the grant of probate, although they are not parties to the petition. There are three applications bearing I.A. Nos.5737-5739/2009, dated 30.4.2009, which are pending adjudication.
Test Cas No.26/1987 Page 10 of 91
9. So far as I.A. No.5737/2009 is concerned, it is for impleadment of the Trustees of Khetri Trust as a party. So far as second application bearing No.5738/2009 is concerned, it is for substitution of list of properties attached to the probate petition. This application was filed by the petitioners on the ground that after filing of the testamentary petition, the petitioners are purported to have come across number of other properties which were belonging to the deceased/Testator and, therefore, wanted to include the same in the list of properties. The third application bearing I.A. No.5739 of 2009 is for seeking permission from the court to lease out property at 5, Sardar Patel Marg, New Delhi, in order to generate income for the purpose of Trust. All these three applications were pending from the year 2009 in the vain hope that these will be taken up at the time of final disposal. But as the matter is now being disposed of, therefore, these applications will also be dealt with.
10. So far as I.A. No.5737/2009 for impleading the Trustees are concerned, I feel that there ought to be no objection to Test Cas No.26/1987 Page 11 of 91 allow the said application because ultimately, it is the trustees who have to implement and execute the wishes of the deceased/testator, if the probate/letter of administration is granted. Therefore, in my view, this application deserves to be allowed.
11. One of the applications which is pending for adjudication is regarding permitting the petitioners to amend the schedule of properties. In this, the learned counsel for the petitioners has contended that after the filing of the probate petition, the petitioners learnt about some other properties belonging to the deceased/testator, details of which are annexed along with the application which was not given in the schedule attached to the probate petition. It has been stated that this was on account of an inadvertent mistake as they were not aware of these properties belonging to the deceased/testator. The application was opposed by the objectors. It was averred by the respondents that the petitioners have not given the correct account of all the inventories left behind by the deceased/testator. In this regard, it was contended that no Test Cas No.26/1987 Page 12 of 91 details of the bank account, fixed deposits and jewellery articles have been furnished. It has also been stated that admittedly, the deceased/testator at the time of his death in Bombay, was living at 5, Sardar Patel Marg, New Delhi.
12. I have carefully considered this submission made by the respective sides and gone through the judgments in case titled Basudeo Dalmia & Anr. Vs. The State and Ors. MANU/DE/1542/2010 and Vinoo Bhagar Vs. Anita Rewal 1980 RLR 245.
13. Both these cases have been relied upon by the learned counsel for the petitioners for amendment of the schedule of the properties.
14. I have gone through these judgments. I feel that because of these judgments, there is absolutely no justification in denying the prayer sought by the petitioners seeking amendment of the schedule of the properties as, at the time of filing of the petition, the petitioners on account of an inadvertent mistake may not have been aware of the details of the other movable or immovable properties which are sought Test Cas No.26/1987 Page 13 of 91 to be included in the schedule to the probate petition. So far as the stand taken by the respondents that no details of the bank account, fixed deposits and jewellery articles have been given, I am of the view that merely because such details have not been given does not necessarily mean that the petitioners could not be permitted to give details in case they were aware of the same. It is well possible that the petitioners themselves may not be aware of the details of the bank account, fixed deposits and jewellery articles or it is also possible that the deceased/testator may have during his life time disposed of or gifted all these items leaving hardly anything to be bequeathed by virtue of the Will in question. Therefore, I feel that there is absolutely no reason to disallow the prayer which has been made by the petitioners for seeking amendment of the schedule to the probate petition. Accordingly, the IA No.5738/2009 is allowed and the petitioners are permitted to amend the schedule of the properties attached to the probate petition.
Test Cas No.26/1987 Page 14 of 91
15. This leave us with the third application bearing No.5739/2009 seeking permission to let out 5, Sardar Patel Marg, so that income is generated for the benefit of the Trust. I feel, since this application has remained pending for the last three years and now that the main petition is being decided, this can await the outcome of the same.
16. After filing of the probate petition, a number of objections were filed in response to the citation published in the „Statesman‟ on 17.4.1987, which had a wide circulation including in the State of Rajasthan, where most of the properties were situated. These objections were filed by the persons, namely, Rajender Singh, who died after filing of the objection and was represented by his legal heirs, Hemender Singh, Nagender Singh and Shobha Kanwar. The other objections were filed by Arjun Singh, Surender Singh, Narender Singh, Laxman Singh, Dwarka Prasad Parekh and Raghuvir Singh. Out of these objectors, except Raghuvir Singh, the rest of the objectors withdrew their objections by filing applications before the court on 10.2.2009. So far as Test Cas No.26/1987 Page 15 of 91 Raghuvir Singh is concerned, he was stated to be incarcerated in connection with some criminal case registered against him in Jaipur Central Jail, who initially persisted with his objections and made allegations that the Khetri Trust and other entities had fraudulently fabricated documents and sold various properties of Raja‟s Estate, a number of times, however, before the start of arguments on the merits of the petition, Raghuvir Singh also withdrew his objections.
17. It was alleged by the learned counsel for the petitioners that these objections were filed by a consortium in collusion with land mafia of Delhi, Rajasthan and Haryana who got involved in illegal sale of several properties while as Mr. Ganju, the learned senior counsel contended that the very fact that there were number of objectors to the grant of probate and all of them withdrew the objections gradually, is indicative of the fact that there is something more than what meets the eye. It was contended that these objections could not have been withdrawn without some consideration having been paid to all the objectors.
Test Cas No.26/1987 Page 16 of 91
18. The State of Rajasthan had filed an application bearing I.A. No.867/95 for being impleaded as a party on account of bona vacantia for want of rightful owner and the fact that it had taken possession of some of the properties in Jaipur to preserve them under the Rajasthan Escheat Regulation Act, 1956 and therefore, it was necessary as well as proper party. The learned Single Judge rejected the application of the State of Rajasthan for impleadment on the ground that an application seeking similar relief filed by some third party had already been rejected by the Court. Feeling aggrieved, the State of Rajasthan preferred an appeal. The State of Rajasthan was impleaded as a party to the testamentary petition by virtue of the order dated 8.11.1996 passed by the Division Bench in F.A.O. (OS) No.166 of 1996 but it was only permitted to address arguments on the basis of the existing record and it did not have the right to lead any evidence. The State of Rajasthan is alleged to have taken possession of most of the properties of Raja Bahadur under the Rajasthan Escheat Regulation Act, 1956. It has also been brought to the notice Test Cas No.26/1987 Page 17 of 91 of the court that a writ petition against the said proceedings, initiated by the Khetri Trust is pending in the Rajasthan High Court, which has been adjourned sine die. As on date, the State of Rajasthan is the main contesting party to the grant of probate to the petitioners. Though, no evidence has been permitted to be produced by it, but has been permitted to address arguments on the basis of the evidence adduced by the petitioners and the witnesses produced by the respondents/objectors who have latter on chosen to withdraw their objections.
19. The court, after the receipt of the objections from different persons, had framed the following issues on 21.9.1987 :-
"1. Whether the Will dated 30th October, 1985 and the Codicil dated 7th
November, 1985 propounded by the
petitioners had been validly executed by
Raja Bahadur Singh of Khetri
(deceased) while possessed of sound
Test Cas No.26/1987 Page 18 of 91 Evidence of the parties:
20. The petitioners, in order to prove the Will have examined PW-1, P.N. Khanna, who is purported to be one of the attesting witness to the Will and Codicil; PW-2, Parmeshwar Prasad, Manager of the Khetri Trust of Late Raja Bahadur, the petitioner herein and PW-3, Daniel Latifi, Senior Advocate, stated to be a personal friend of Late Raja Bahadur and was Advisor to him on his legal matters. He is also the person who had scribed the Will. He was examined by the petitioners in rebuttal after the respondents/objectors had examined the other attesting witness, RW-8, R.K. Singh.
21. So far as the respondents are concerned, they, in support of their objections, have examined RW-1, Badri Narain Nayak, General Secretary of All-India Anti-Corruption Society; RW-2, Kailash Narain Rawat, Tehsildar, Jaipur, who had testified confirming that an order under the Rajasthan Escheat Regulation Act, 1956 was passed in respect of the properties of Late Raja Bahadur as he had died issueless; RW-3, Dwarka Prasad, head of the family and in occupation of the portion of Test Cas No.26/1987 Page 19 of 91 Khetri House. RW-4, Rajender Singh, an Objector and purported relative of the deceased/Testator; RW-5, Jaswant Singh, bearer/table boy with Raja Saheb; RW-6, Gopal Singh, driver of Raja Saheb; RW-7, Kusum Lata, LDC from the Office of Sub-Registrar, Tis Hazari Courts, who produced the Will of the deceased/Testator as the same was deposited in the Officer of Registrar; RW-8, Ravi Karan Singh, an advocate and junior of Daniel Latifi, who was attesting witness to the Will and the Codicil, who has not supported the case of the petitioners and denied having attested the Will in presence of Late Raja Saheb.
22. The entire thing revolves on the question as to whether the Will dated 30.10.1985 and Codicil dated 7.11.85, purported to have been executed by the deceased/Testator, are duly proved in accordance with law and whether they were executed by the deceased/Testator by his own independent will in the presence of two attesting witnesses so as to bequeath all his movable and immovable properties in favour of the Khetri Trust. In this regard, the testimony of two Test Cas No.26/1987 Page 20 of 91 attesting witnesses, PW-1/P.N.Khanna and RW-8/R.K.Singh, who have been produced by the respective sides, becomes important. In addition to this, the testimonies which will be helpful in determination of the issue whether the Will was genuine or not, would be the testimonies of PW-2, Parmeshwar Prasad, Manager of Late Raja Bahadur; PW-3, Daniel Latifi, Senior Advocate and a friend of deceased/Testator; and RW-7, Kusum Lata, an official witness, who had produced the original Will from the sub-Registrar‟s office.
23. Before analyzing the testimonies of these witnesses, it would be worthwhile to reproduce Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 which deal with the proof of execution of documents required by law to be attested.
"Section 63. Execution of unprivileged Wills.
(c) The Will shall be attested by two or more witnesses, 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 by direction of the testator or has received from Test Cas No.26/1987 Page 21 of 91 the testator a personal acknowledgement of his signature or mark, or of the signature of the 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."
Section 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 by an attesting witness alive, and subject to the process of the Court and capable of giving
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been
registered in accordance with the provision 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.]"
Proof of Will dated 30.10.1985
24. The probate petition is supported by an affidavit of one of the attesting witness, PW-1, P.N. Khanna. It is not in dispute that there are two attesting witnesses, P.N. Khanna (PW1) and R.K. Singh (RW-8), to the Will purported to have Test Cas No.26/1987 Page 22 of 91 been made by the deceased/testator. According to the aforesaid two Sections, if a document is required to be attested by law then it shall not be deemed to have been proved until one of the attesting witness has been called for the purpose of proving the said document, if the attesting witnesses are alive.
25. The petitioners in order to prove the Will have to establish the following facts:-
(i) that the Will dated 30.10.85 is the last Will of the deceased/testator Raja Bahadur Sardar Singh of Khetri. (ii) the said Will was signed by him in the presence of two attesting witnesses namely P.N. Khanna (PW1) and R.K. Singh (RW-8) or has received from the testator personal acknowledgement that he has put his signature or mark on the same.
(iii) That the deceased/testator at the time of making the Will, was in sound disposing mind.
(iv) That all the three persons had put the signatures on the Will in the presence of each other and simultaneously. Test Cas No.26/1987 Page 23 of 91
26. The petitioners in order to prove the Will have examined the witness P.K. Khanna, as PW-1. He has testified that the deceased/testator Raja Bahadur Sardar Singh of Khetri had executed a Will Exhibit P-1 at Tis Hazari, Delhi outside the Registrar‟s office. According to his testimony, he was a practicing Chartered Accountant since 1947 and was representing the deceased/testator in his Income Tax and Wealth Tax matters before the appropriate authority. He had stated that on 30.10.85, he had reached at Tis Hazari Courts at 10.00 a.m., where R.K. Singh, the deceased/testator and 4- 5 other staff members, namely, Gokul Anand, Personal Assistant, driver of Raja Bahadur Sardar Singh of Khetri and the other two staff members were present. It is stated by him that the draft of the typed Will Exhibit P-1 was brought by the deceased/testator himself, who in his presence and the presence of RW-8 has put his signatures at portion of side line „C‟. It is further stated by him that simultaneously, PW-1 and RW-8 also appended their signatures. He has also stated that he remained present throughout. That means, from the time Test Cas No.26/1987 Page 24 of 91 when the deceased/testator arrived and till he completed the formalities.
27. After signing of the Will, the deceased/testator with the help of a staff member is stated to have deposited the Will in the Registrar‟s office and the envelope was also signed by him which is Exhibit P-2. In his cross examination, he has stated that as far as he recollects, there were two copies of Exhibit P- 1 of the Will, one was deposited in a sealed cover Exhibit P-2 with the Registrar and the other one was retained by the deceased/testator. He has also admitted that there could be more copies, which he might have signed. He has also testified that on 7.11.1985, he visited the house of the deceased/testator and signed the Codicil Exhibit P-3 when the deceased/testator was sitting in sitting cum bedroom. He stated that RW-8, R.K. Singh, also signed the Codicil around the same time. He expressed his ignorance about the fact as to whether PW-2, Parmeshwar Prasad, one of the petitioners was being paid salary of Rs.2000-3000/- on monthly basis or not. He has also denied the knowledge of the fact as to Test Cas No.26/1987 Page 25 of 91 whether under the Will, Parmeshwar Prasad was to get a sum of Rs.3,000/-, though, he has admitted that Parmeshwar Prasad was known to him.
28. So far as the fitness of the deceased/testator to make the Will is concerned, he has denied any knowledge about his ailment. He has not stated anything either in examination-in- chief or cross examination which will make the Court draw any inference that the deceased/testator was not of sound disposition to make the Will.
29. As against this, the objectors have produced R.K.Singh the other attesting witness in support of their case, who appeared as RW-8. He has stated that Exhibit P-1 bears his signatures at portion „B‟. He has also stated that he was working at the relevant time as the junior to Daniel Latifi, Senior Advocate and on his instructions on 29.10.85, had gone to 5, Sardar Patel Marg, New Delhi and introduced himself to one Mr. Prasad referring to Parmeshwar Prasad and on his asking, he signed the document at places mentioned above. He has also admitted his signatures on Exhibits P-2 and P-3. Test Cas No.26/1987 Page 26 of 91 He has also stated that at the time when he puts his signatures on Exhibit P-1, there was nobody else present at the house of deceased testator except PW-2, Parmeshwar Prasad. He has also admitted that he had gone to Tis Hazari, on the asking of PW-2 where some papers were kept in the safe custody on the asking of Parmeshwar Prasad and he had signed the sealed cover Exhibit P-2 also. If one examines minutely, it shows that though the Exhibit P-1 is signed in blue ink, while as Exhibit P-2 is signed with black ink. One of the explanations for these two different inks could be that Exhibit P-1 was signed on 29.10.1985 at 5, Sardar Patel Marg, New Delhi, while as Exhibit P-2 was signed by him on 30.10.1985 at Tis Hazari, Delhi, therefore, unwittingly, two differtent pens were used. Conversely, it is very unlikely that a person would use two different pens/inks unless and until something goes wrong with the pen itself.
30. So far as the Codicil Exhibit P-3 is concerned, it is stated by him that he had signed the same in the chamber of Daniel Test Cas No.26/1987 Page 27 of 91 Latifi, PW-3, when it was brought by PW-2, Parmeshwar Prasad.
31. In his cross examination, he has stated that he had never seen Raja Bahadur Sardar Singh of Khetri, who is purported to have signed the document Exhibit P1 to P-3. He has also identified the signatures of Daniel Latifi as senior advocate on bill Exhibit RW-8/PA.
32. In his cross examination, he has also denied that he has received a sum of Rs.1,000/- by way of a cheque for the purpose of checking the draft of the Will. He has admitted his signatures on the Codicil also. However, he denied that he knew P.N. Khanna, CA (PW-1).
33. It is also denied by him in the suggestion that he was present along with P.N. Khanna (PW-1) on 29.10.85 and 7.11.85 at the residence of Raja Bahadur Sardar Singh of Khetri, the deceased/testator. He has also denied that he has testified at the instance of the objector, as he has been won over.
Test Cas No.26/1987 Page 28 of 91
34. A perusal of these two testimonies shows that either of them is telling a lie because the testimony of both these witnesses is dramatically opposite. It is in this background that the testimony of PW-3, Daniel Latifi, the senior advocate who is the scribe of the Will and at whose instance PW-8, R.K. Singh, his junior had become a witness to the Will, becomes most crucial.
35. If one goes through the testimony of PW-3/Daniel Latifi, he has stated that he was present physically along with the deceased/testator at the time of keeping the Will with the Registrar at Tis Hazari Courts. He has also stated that Raja Bahadur Sardar Singh of Khetri was his personal friend and, therefore, he had accompanied him to Tis Hazari on 30.10.1985. He has also stated that probably R.K. Singh (RW- 8) was there but he was not sure. He has also stated that he had signed the original Will and was very emphatic in giving answers in affirmative in this regard. But all these facts clearly show that his testimony is not corroborated either Test Cas No.26/1987 Page 29 of 91 orally by the other attesting witnesses of the Will or even by the circumstances.
36. If we examine the testimony of these three witnesses together then one thing becomes clear that the Will of the deceased/testator has not been signed by the deceased/testator along with the attesting witnesses.
37. Secondly, it is doubtful if it has been signed on 30.10.1985 by the deceased/testator and thirdly, that all of them were not present at the time of signatures at Tis Hazari. This is evident from the fact that PW-1 is very emphatic and clear that he had gone to Tis Hazari Court on 30.10.85 at 10.00 am and the deceased/testator along with his staff members namely Gokul Anand, two attendants, driver were present. He has also stated that R.K. Singh (RW-8) was also present. But he does not name Daniel Latifi (PW-3) as the person who was present, as claimed by him. Daniel Latifi was a tall person and he being a senior advocate, his presence would have been conspicuous which could not have gone unnoticed though he has stated that he was present in his Test Cas No.26/1987 Page 30 of 91 personal and professional capacity. But if we believe, the testimony of PW-1 then not only the deceased/testator appended his signatures in the presence of PW-1 but also in the presence of R.K. Singh, RW-8, but this is not borne out from the testimony of the other two witnesses because PW-1 shows that he was present throughout the time so long as the deceased/testator remained there, but he does not name Daniel Latifi, senior counsel as a person, who was also present at Tis Hazari Courts. It may be possible that he was not aware of the name of Daniel Latifi, PW-3 but at least he would have certainly said that a friend of the deceased/testator was also accompanying him.
38. In addition to this, the testimony of PW-1 is to the effect that R.K. Singh (RW-8) was present, gets belied by the fact that Daniel Latifi, PW-3, himself has stated that he is not sure whether R.K. Singh (RW-8) was present on 30.10.85 at Tis Hazari Court and this gets further fortified by the fact that R.K. Singh (RW-8) in his examination in chief is very categorical to say that on the instructions of the learned senior counsel, Test Cas No.26/1987 Page 31 of 91 namely Daniel Latifi, he had gone on 29.10.85 to 5, Sardar Patel Marg, New Delhi where he had appended his signatures on certain documents at the instance of Parmeshwar Prasad; meaning thereby, that he had put his signatures at the instance of Parmeshwar Prasad, PW-2 in terms of the directions given by his senior counsel. Obviously, at that point of time, neither the deceased/testator nor P.N. Khanna (PW- 1) were present. Further, if we believe PW-3 regarding the events on 30.10.85 then RW-8 was not present on that day while as RW-8 say that he went to Tis Hazari on 30.10.85, though he had signed the Will on the previous day. R.K. Singh, RW-8 does not talk about the presence of PW-3, Daniel Latifi on 30.10.85. Therefore, one thing is clear that PW-3 was not present on 30.10.85 at Tis Hazari; Secondly, RW-8, R.K. Singh, had signed the Will on 29.10.85 and not on 30.10.85 as claimed by PW-1 P.N. Khanna and thirdly, at the time when RW-8 signed the Will, the deceased/testator was not present nor did the deceased/testator admit his signatures on the Will Test Cas No.26/1987 Page 32 of 91 to RW-8 because R.K. Singh, RW-8, is categorical that he has not seen him at all.
39. If that be so, certainly, it is established by the preponderance of probability that PW-1 is not truthful and he is lying both with regard to the factum of the presence of all three persons on 30.10.85 as well as the factum of all three of them having put their signatures simultaneously and it is not safe to rely on his testimony.
40. If that be so, certainly, it cannot be said with certainty that the Will dated 30.10.1985 is genuine and the Will is proved in accordance with Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act.
41. Mr. Dayal, the learned counsel for the petitioners, so far as the law regarding grant of probate is concerned, has referred to a case titled Daulat Ram & Ors. Vs. Sodha & Ors. (2005) 2 SCC 40, wherein it has been held by the Apex Court as under:-
"10. Will being a document has to be proved by primary evidence except where the court
permits a document to be proved by leading
Test Cas No.26/1987 Page 33 of 91 secondary evidence. Since it is required to be attested, as provided in Section 68 of the
Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting
witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Indian
Succession Act, 1925. In order to document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his
presence and in the presence of each other. Once these elements are established, the
onus which rests on the propounder is
discharged. But where there are suspicious
circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove
that the Will was forged or that it was
obtained under undue influence or coercion or by playing a fraud is on the person who
alleges it to be so."
42. Another judgment cited by Mr.Dayal, the learned counsel was Gurdev Kaur & Ors. Vs. Kaki & Ors. (2007) 1 SCC 546, wherein it was held that if a Will appears on the face of it, to Test Cas No.26/1987 Page 34 of 91 have been duly executed and attested in accordance with the requirement of the statute, a presumption of due execution and attestation applies.
43. There is no dispute with this preposition, if it appears from the face of the Will that it has been duly executed and attested in accordance with the requirement of the statute, a presumption of due execution and attestation may be drawn but this presumption will have to be drawn in the light of the facts and circumstances of the case as it emerges from the testimony of the attesting witness(s) who are produced.
44. In this context, another judgment have been relied upon by the learned counsel for the petitioners, which is Mathew Vs. Devassykutty & Ors. AIR 1988 Kerala 315, wherein it was held that if one of the attesting witnesses is denying the attestation of the Will in testator‟s presence and otherwise, the Will is rational and executed in sound mental state and the Legatees be granted letters of administration then the Will, will be deemed to have been proved.
Test Cas No.26/1987 Page 35 of 91
45. In the facts of the said case, the elder son was totally disinherited as he had already been amply provided by the testator and it was observed that his disinheritance would not affect the validity of the Will when one of the attesting witnesses has categorically stated that he and the other attesting witnesses attested the Will in the presence of the testator and saw the signing of the Will but one of the attesting witness has stated that the Will was not attested by him in the presence of the testator.
46. Similarly, Mr. Dayal, had also referred to a judgment of Andhra Pradesh High Court in case titled Bandaru Veeramma & Ors Vs. Chirravuri Ramakrishna Sarma & Ors. AIR 1976 Andhra Pradesh 370, wherein it was held that in the event of a attesting witness being declared hostile, it is presumable for the propounder of the Will to cross examine such an attesting witness and it will also be legitimate for such a propounder to rely upon the evidence to show that the Will has been properly executed.
Test Cas No.26/1987 Page 36 of 91
47. These judgments have been relied upon by the learned counsel for the petitioners to contend that as in the instant case, RW-8/R.K. Singh, the second attesting witness has sought to testify in a manner which will demolish the testimony of PW-1/P.N. Khanna with regard to the attestation and signature on the Will, by saying that he had signed the Will at the residence of the deceased/testator i.e. 5 Sardar Patel Marg, New Delhi-110021 and that too on 29.10.1985 while as, the case of the petitioners is that the deceased/testator had made a Will on 30.10.85 at Tis Hazari, where he had put his signatures in the presence of both the attesting witnesses and therefore, his testimony deserves to be excluded. It was urged that the testimony of this witness was actuated by mala fides. He wanted to testify in favour of the objectors because they have influenced him. It was urged that the testimony of RW-8 is unreliable, be discarded completely in the light of the testimony of PW-3, Daniel Latifi/ the scribe of the Will who happened to be the senior counsel coupled with the testimony of PW-1 who has fully proved the Test Cas No.26/1987 Page 37 of 91 Will and therefore, a presumption with regard to the proof of the Will under these circumstances can be drawn.
48. I am not impressed by this submission made by Mr.Dayal, the learned counsel, that merely because RW-8 has not supported the testimony of the other attesting witness PW1, with regard to the place of signing and the date of signing, therefore, his testimony deserves to be discarded. RW-8, R.K. Singh, cannot also be said to be a hostile witness merely because he has not deposed the way the petitioners would have liked him to depose. Secondly, a witness could be declared as hostile only by the party who has produced him as it gives such a party the right to cross-examine the witness. In the instant case, RW-8, R.K. Singh, has not been produced by the petitioners, therefore, he cannot be said to be hostile so far as the petitioners are concerned as per the Evidence Act.
49. On the contrary, it is established by preponderance of probability that not only the date of signing the Will, the place of signing the Will is also doubtful as well as the signing of the Test Cas No.26/1987 Page 38 of 91 Will by all three of them, simultaneously, itself is under doubt. This is so, if we were to analyze the testimony of PW-1 and PW-3, the scribe of the Will and RW-8, R.K. Singh.
50. I have hereinabove referred in detail that PW-1/P.N. Khanna is admittedly, the CA of the deceased/testator who was attending to his financial matters. He is very emphatic and clear that he had put the signatures on the Will in duplicate on 30.10.85 at Tis Hazari in the presence of the deceased/testator. He is also very clear that the deceased/testator was accompanied by 4-5 persons, one of whom was a driver and the other attendant, namely, Mr.Gokul Anand and Parmeshwar Prasad and he remained present throughout; that means, from the time of signing of the Will till the time the deceased/testator might have left. He does not name PW-3, Daniel Latifi, as the person who was present at the time of signing at Tis Hazari while as Daniel Latifi says that he had accompanied the deceased/testator to Tis Hazari. PW-1 also in his cross examination is doubtful as to whether he signed only two copies of the Will or more and said that it Test Cas No.26/1987 Page 39 of 91 could be more. As against this, he was also very emphatic that RW-8 also puts his signatures at Tis Hazari while as, RW- 8/R.K. Singh in his examination-in-chief and cross examination has stood his ground firmly by stating that he had signed the Will on 29.10.85 at 5, Sardar Patel Marg, New Delhi. He was also given suggestions by the petitioners to the effect that he signed the Will at 5, Sardar Patel Marg, New Delhi on 29.10.85; that means, the petitioners themselves are admitting at least one fact that RW-8 had signed the Will at 5, Sardar Patel Marg, New Delhi. Further RW-8 states that he had not seen the deceased/testator at the time of signing of the Will and he simply puts signatures on some documents at the instance of one „Prasad‟, obviously referring to Parmeshwar Prasad. He has also stated that the Codicil Exhibit P-3 is signed by him on 07.11.85 at the Chamber of PW-3, Daniel Latifi and not in the presence of PW-1, P.N. Khanna or the deceased/testator. Therefore, in the light of this scenario, one thing is clear that the Will and the codicil are not signed by all the persons simultaneously, either at Tis Hazari or at 5, Sardar Test Cas No.26/1987 Page 40 of 91 Patel Marg, New Delhi, and secondly, if one assumes that the Will was signed at Tis Hazari then obviously, it becomes doubtful that all three of them have put signatures simultaneously because of the testimony of RW-8, R.K. Singh, for which, in my view, there is no reason to discard his testimony as he has nothing to gain personally.
51. So far as the signing of the Will on 30.10.85 at Tis Hazari is concerned, it further becomes doubtful because both PW-1 and PW-3 are claiming to be present on the said date at Tis Hazari, yet each one of them did not see each other or give the names of each other. Therefore, both of them could not have been present and one of them is at least not giving the correct picture. PW-3, Daniel Latifi also said that he has put his signatures on the Will on 30.10.85 at Tis Hazari while as the signatures are not appearing on any of the pages of the Will. Therefore, the very signing of the Will at Tis Hazari in the presence of these persons becomes doubtful. If one assumes that the Will was signed on 29.10.85 at 5, Sardar Patel Marg, New Delhi, this is contrary to the very basis of the Test Cas No.26/1987 Page 41 of 91 case of the petitioners who have set up the Will with the affirmation that it was signed on 30.10.85 at Tis Hazari.
52. In addition to this, even if the petitioners are given the benefit of doubt of some mistake with regard to the date and even if it is on 29.10.85, PW-1 was not present at 5, Sardar Patel Marg, New Delhi, therefore, this becomes a matter which is highly doubtful and the Will cannot be deemed to have been proved, notwithstanding the fact that both the attesting witnesses are testifying contrary to each other.
53. Mr. Dayal, the learned counsel has also placed reliance on case titled Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors. 2008 (4) SCC 300 and case titled Damodar Bordoloi Vs. Mrinalini Devi Trust Board & Ors. AIR 1999 Guwahati 53 with regard to the principles regarding proof of the execution of the Will to contend that in the said case the attesting witnesses did not state that they have signed the Will in the presence of a testator then a presumption in such a case of the absence of due attestation was not warranted. It was also observed that the proof of the testamentary capacity of the Test Cas No.26/1987 Page 42 of 91 deceased/testator is to be established from the evidence of a competent and disinterested witness while as, RW-8 was stated to be an interested witness. It is stated that he has denied even the receipt of his fee of Rs.1000/- which has been proved by PW-3 with the help of a bill.
54. I do not think that denial of receipt of fee of Rs.1000/- by RW-8 in any way dents his testimony. Apart from this, even if Ex.RW-8/PA, the bill is stated to have been proved, it is at best a bill which is floated by him for the purpose of raising the bill and is not a document showing the payment to the RW-8, R.K. Singh.
55. I have gone through the aforesaid judgments. In Damodar Bordoloi‟s case (supra), relied upon by the learned counsel, it was held as under:-
"it cannot be laid down as a matter of law
that because the witness did not state in
Court that they signed the Will in the
presence of the testator, it could not be
assumed that there was no due
attestation. It was further held that if a
witness owing to inadvertence fails to say
Test Cas No.26/1987 Page 43 of 91 that he had attested the document in the
presence of the testator and narrates the
consequence which leads to no other
inference but one that he had put his
signature in the presence of the testator,
then this omission on the part of the
witness would not invalidate the Will and it shall not preclude the Court to infer this
fact from other evidence on record that
the witnesses had signed the document in
the presence of the testator."
56. It was further observed as under:-
"the law does not emphasis that the
witness must use the language of Section
63 to prove the requisite matters thereof.
In a case where attesting witnesses are
produced and they have given clear and
cogent testimony regarding execution, one
should require very the strong ground to
repel the effect of such testimony."
57. I do not think that there could be any disagreement with the judgment which has been cited by the learned counsel. The only dispute is as to whether the observations made by the learned Single Judge of Guwahati High Court would be applicable to the facts of the present case.
58. To my mind, the facts of the present case as it emerges from the testimony of the attesting witnesses does not show that it is a case where on account of inadvertence, the Test Cas No.26/1987 Page 44 of 91 attesting witnesses does testify that they have seen the Will being signed in the presence of the deceased/testator. On the contrary, RW-8 has categorically stated in his examination-in- chief and cross examination that he signed the Will on 29.10.85 at 5, Sardar Patel Marg, New Delhi at the instance of his senior counsel PW-3, Daniel Latifi in the presence of one Prasad only, namely, Parmeshar Prasad, PW-2. He has also stated categorically that while signing the Will, he had not seen the deceased/testator. Obviously, in such contingency, it cannot be said that the principles which have been evolved by the High Court of Guwahati in the facts of the said case can be made applicable to the fact of the present case, where there is a categorical evidence to the contrary. This is further fortified by the fact that PW-1 gives altogether a different picture with regard to the date, time and the place of signing. Therefore, this judgment is distinguishable from the facts of the case and its ratio is not applicable.
59. In the light of the aforesaid analysis of the evidence, I feel that the judgments of Mathew‟s, Bandaru„s cases (supra) Test Cas No.26/1987 Page 45 of 91 and Sridevi Vs. Jayaraja Shetty & Ors. 2005 (2) SCC 784 are distinguishable from the facts of the present case.
60. In K.K. Birla‟s case (supra), the Supreme Court has observed that the probate Court would not decide any dispute with regard to the title and therefore, a separate suit would lie. I do not think there can be any issue on that score nor is such a preposition of law involved in the instant case. Similarly, in Sridevi‟s case (supra), it has been held that the onus of proof to begin with, is on the propounder regarding the testamentary capacity and signatures of the testator. In addition to this, the onus with regard to the absence of any suspicious circumstances is also on the petitioners. Once this onus is discharged, the burden of proof shifts to the respondents and onus to establish the allegations of undue influence, fraud and coercion is on the person making such allegations. It has also been observed that proof in either case should be one of the satisfaction of a prudent man.
61. Regarding this proposition of law also, there could be no quarrel. The onus is on the petitioners in the instant case to Test Cas No.26/1987 Page 46 of 91 establish the proof of execution of the Will of the deceased/testator when he was in a sound state of mind. The petitioners also have the onus to show that there was no suspicious circumstance and it is only when this onus is discharged, that the onus to prove, the existence of suspicious circumstance regarding Will, will shift on to the respondents.
62. In the instant case, I have already examined the question of proof of execution of the Will which I feel that the petitioners have failed miserably to establish by any cogent, reliable, credible evidence to the satisfaction of a prudent man or the Court that the Will dated 30.10.85 was made by the deceased/testator bequeathing his movable or immovable properties to a Trust and that the Will was signed on 30.10.85 by him simultaneously in the presence of two attesting witnesses and thereafter, got registered.
Non-compliance of Section 276(3) with Section 283 (3) of the Indian Succession Act, 1925
63. Mr. Ganju, the learned senior counsel appearing for the State of Rajasthan has contended that no probate can be granted to the petitioners inasmuch as the mandatory Test Cas No.26/1987 Page 47 of 91 requirement of Section 276 (3) and Section 283 sub-Section (3) of the Indian Succession Act, 1925 regarding publication of the citation in a District in which a part of the property is situated, has not been mandatorily complied with. It was contended that the petitioners have also not made list of assets in each District as contemplated in Section 276 (3) of the Indian Succession Act. It will be worthwhile to reproduce the language of the aforesaid sections, which reads as under :- "276 Petition for probate. -
(3) Where the application is to the District Judge and any portion of the assets likely
to come to the petitioner‟s hands is situate in another State, the petition shall further state the amount of such assets in each
State and the District Judges within whose
jurisdiction such assets are situate."
"283 Powers of District Judge. -
(3) Where any portion of the assets has
been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to
be sent to such other District Judge, who
shall publish the same in the same manner
Test Cas No.26/1987 Page 48 of 91 as if it were a citation issued by himself, and shall certify such publication to the
District Judge who issued the citation."
64. Mr. Ganju, the learned senior counsel, on the strength of the aforesaid statutory provisions has placed reliance on case titled Basanti Devi vs. Ravi Prakash Ram Prasad Jaiswal; (2008) 1 SCC 267 to contend that since the Apex Court in the said judgment has held the requirements of Section 283 sub-Section (3) to be mandatory in nature, and as the said requirement has not been complied with in the instant case, therefore, no probate can be granted.
65. It was contended by Mr. Dayal, the learned counsel for the petitioners that citation was published in National Edition of „Statesman‟ which has a wide circulation in Rajasthan. Notices were issued to the District Judge, Jaipur on 2.11.87 and 7.11.87. The State of Rajasthan filed an application being I.A. No.915/2010 for citation to be published in „Statesman‟ after a lapse of 23 years. Further, the facts of the Basanti Devi‟s case (supra) were different. In the said case, the respondent, in the first instance, did not disclose that the Test Cas No.26/1987 Page 49 of 91 deceased/testator had property at a place other than the State of Maharastra. Even when the application for amendment was filed, it was not disclosed that there is another property situated in District Pratapgarh, State of UP. It was in this background that the Apex Court observed that a person having no knowledge about the proceedings in the absence of a proper citation was entitled to get the probate revoked.
66. As against this, in the present case, the details of the properties as available in different District was given. The news relating to probate application was very well covered by the local dailies of Rajasthan. Objections were filed by number of persons, some of whom were from Jhunjhunu District. Therefore, it could not be said that conditions of Section 283(3) were not complied with. It was further urged that the State of Rajasthan having invoked the provisions of the Rajasthan Escheat Regulation Act, 1956, themselves had issued notification under Section 6 (i) (b) of the said Act. Therefore, this was sufficient compliance.
Test Cas No.26/1987 Page 50 of 91
67. I have carefully considered the submissions made by the respective sides. I have also gone through the judgment cited by the learned senior counsel for the State of Rajasthan. I agree with the contention of the learned counsel for the petitioners that merely because there is alleged non- compliance of Section 283 (3) of the Indian Succession Act, 1925 on account of non-publication of the citation in the District of Jhunjhunu through the District Judge, that will not be a ground for denial of grant of probate to the petitioners, provided the Will is otherwise proved. This is on account of the fact that the very purpose of compliance of this mandatory requirement is to make the party know about the pendency of the probate petition. In the instant case, the State of Rajasthan is vehemently contesting the probate petition before this court as well as also contesting the writ petition filed by the petitioners before the Rajasthan High Court. Therefore, it was within the knowledge of the State of Rajasthan that the probate petition is pending before the appropriate judicial forum for adjudication. It does not lie in the mouth of the Test Cas No.26/1987 Page 51 of 91 State of Rajasthan to contend that though they are aware of the pendency of the probate petition and are contesting the same yet, the petitioners should be denied the grant of probate on account of the non-compliance of the mandatory provisions under Section 283 (3) of the Indian Succession Act, 1925. It is not a case where an objector to the grant of probate petition has come to the court saying that he was not aware of the proceedings pending before the Court. On the contrary, despite the non publication of the citation by the District Judge, Jhunjhunu, the objectors did file number of objections. Therefore, in my view, this was sufficient compliance of Section 283 (3) of the Act. It is also not a case where the grant of probate is sought to be revoked on account of non-compliance of this mandatory requirement in Basanti Devi‟s case (supra), therefore, I hold that this contention of the State of Rajasthan is without any substance and is accordingly, rejected as a ground for non-grant of probate. Duplicate Will and Will void on account of uncertainty Test Cas No.26/1987 Page 52 of 91
68. Mr. Ganju, the learned senior counsel had next contended that merely because Will Exhibit P-1 has been registered by the deceased/testator with the Registrar‟s office, that does not dispense with the requirement of proof of the due execution and attestation of the Will for grant of letter of administration or probate. It was contended that the Will which has been exhibited as Exhibit P-1, bears the duplicate stamp. It was contended that if it was duplicate, then before taking this as a secondary evidence, the petitioners had to establish that the original Will was not available or the conditions which would have made the secondary evidence admissible in terms of Section 66 of the Evidence Act, 1872 were existing.
69. Further, the learned senior counsel has referred to paragraphs 12 and 13 of the judgment of the Apex Court in Apoline D‟Souza vs. John D‟Souza; (2007) 7 SCC 225 as to how the Will is to be proved. Relevant paragraph Nos.12 and 13 of the said judgment are reproduced as under:- Test Cas No.26/1987 Page 53 of 91 "12. What should be the mode of execution
of a will has been laid down in Section 63 of the Succession Act in the following terms : "63. Execution of unprivileged wills. - Every testator, not being a soldier
employed in an expedition or engaged in
actual warfare, 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 marks to the will, or it shall be signed by some other person in his
presence and by his direction.
(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 to a Will.
(c) The Will shall be attested by two or
more witnesses, 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 by the direction
of the testator, or has received from the
testator a personal acknowledgement of
his signature or mark, or of 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
Test Cas No.26/1987 Page 54 of 91 particular form of attestation shall be
13. Section 68 of the Evidence Act, 1872
provides for the mode and manner in which
execution of the Will is to be proved. Proof of attestation of the Will is a mandatory
requirement. Attestation is sought to be
proved by PW-2 only. Both the daughters
of the testatrix were nuns. No property,
therefore, could be bequeathed in their
favour. In fact one of them had expired
long back. Relation of the testatrix with the respondent admittedly was very cordial.
The appellant before us has not been able
to prove that she had been staying with the testatrix since 1986 and only on that
account she was made a beneficiary
thereof. The Will was full of suspicious
circumstances. PW-2 categorically stated
that the Will was drafted before her coming to the residence of the testratrix and she
had only proved her signature as a witness
to the execution of the Will but the
document was a handwritten one. The original Will is typed in Kannada, although the blanks were filled up with English
letters. There is no evidence to show that
the contents of the Will were read over and explained to the testatrix. PW-2 was not
known to her. Why was she called and who
called her to attest the Will is shrouded in mystery. Her evidence is not at all
satisfactory in regard to the proper frame
of mind of the testatrix. There were several cuttings and over writings also in
Test Cas No.26/1987 Page 55 of 91
70. It was also contended that the initial onus with regard to the proof of the Will has to be discharged by the petitioners and in the instant case, the petitioners have failed to discharge the said onus. Reliance in this regard was drawn to the testimony of RW-8, R.K. Singh, to contend that he has not proved the signatures of the deceased/testator.
71. It was contended that the Will which has been sought to be proved by the petitioners lacks in description of extent properties alleged to be bequeathed by the defendants. It is contended that Section 89 of the Act makes such Will void for uncertainty. It is also contended that strangers have been included as attesting witnesses, which is quite intriguing. It is contended that there is utter improbability of the testator being highly educated would get his Will attested by the two persons who were not closely associated with him. In this regard, the learned counsel has put reliance on the observations passed by the Apex Court in Smt. Jaswant Kaur vs. Smt. Amrit Kaur & Ors; (1977) 1 SCC 369 which reads as under :-
Test Cas No.26/1987 Page 56 of 91 "..................Neither is the place of execution mentioned. The Will also lacks in
description of the extensive properties
allegedly bequeathed to the defendant.
The inclusion of strangers as attesting
witnesses is intriguing. The utter improbability of the testator accosting two strangers for getting his Will attested and the fundamental contradictions in their
evidence render it impossible to hold that
they attested the Will at the instance of the testator as alleged. A man of importance
that the testator was, he could not ever
have left the validity of his Will to depend on the unpredictable attitude of unknown
72. It has been contended by the learned counsel that since the deceased/testator was a law knowing person, well-placed in life, being a Member of Constituent Assembly, Member of Rajya Sabha and even an Ambassador to Laos on behalf of Government of India, it is very unlikely that he would have placed reliance on two unknown persons like PW-1, P.N. Khanna, and RW-8, R.K. Singh, junior to his friend PW-3 Daniel Latifi, as the persons who would be attesting witnesses to his Will. It is further contended that he would have made persons, who were intimately associated with him like Test Cas No.26/1987 Page 57 of 91 Mr.Parmeshwar Prasad and Gokul Anand or other known person as attesting witness rather than selecting two unknown strangers.
73. Further, it has also been contended by him that if one reads the Will, it refers to bequeathing of his all movable and immovable properties, as detailed in income-tax and wealth- tax returns to the Khetri Trust, which was likely to be created. It has also been stated in the Will that these detailed properties are mentioned „herein below‟ but neither the details of the properties are given in the Will itself nor the copies of the wealth-tax return or income-tax return, indicating the number of properties owned by him which are purported to have been bequeathed, have been attached, therefore, it has been contended in terms of Jaswant Kaur‟s case (supra), that the Will is fraught with high improbabilities and it will not be safe to rely upon.
74. This plea has been contested by the learned counsel for the petitioners. It has been contended by him that there was no doubt in the mind of the deceased/testator as to the Test Cas No.26/1987 Page 58 of 91 witnesses or the nature of properties owned by him. There was no confusion about the intent of the deceased/testator as he wanted to bequeath all his movable and immovable properties to a Trust for the benefit of the public at large for the purpose of education, welfare, medicines, etc., therefore, he was very clear while bequeathing the property that all movable and immovable properties have to go to the said Trust for the benefit of the public at large. It is contended that the objection or the contention of the learned counsel for the State of Rajasthan is without any merit.
75. I have considered the rival contentions. I find substance in the submission made by Mr. Ganju, the learned senior counsel for the State of Rajasthan that the Will lacks particulars and is fraught with improbabilities. In this regard, it would be pertinent here to refer to Section 89 of the Indian Succession Act, along with illustration which reads as under:- "89. Will or bequest void for uncertainty.--A will or bequest not
expressive of any definite intention is void for uncertainty."
Test Cas No.26/1987 Page 59 of 91 Illustration
If a testator says "I bequeath goods
to A", or "I bequeath to A", or "I leave to A all the goods mentioned in the Schedule"
and no Schedule is found, or "I bequeath
„money‟, „wheat‟, „oil‟" or the like, without saying how much, this is void".
76. A perusal of the contents of the Will, which have been reproduced herein at paragraph 2, clearly shows that it makes a reference to bequeathing of the movable and immovable properties by the deceased/testator and as reflected in the wealth-tax and income-tax return to the Trust but neither these details have been furnished by way of attaching the wealth-tax or income-tax return nor are the details of the properties mentioned in the Will itself. The words used in the Will are „all those my properties, moveable or immovable, anywhere, upon trust as below appears‟, meaning thereby that the deceased/testator wanted to give the details of the property mentioned there under. Separately also, the petitioners could have proved the income-tax and the wealth- tax return of the deceased/testator so as to give certainty to the list of moveable and immoveable properties owned by the Test Cas No.26/1987 Page 60 of 91 deceased/testator, which were sought to be bequeathed. This has not been done.
77. Therefore, the Will, in my view, becomes void in terms of Section 89 for want of particulars of the movable and immovable properties. This becomes a suspicious circumstance in the Will, which the petitioners‟, in my view, have failed to discharge to the satisfaction of the court. Merely because the Will has been registered with the sub- Registrar or merely because the properties have been bequeathed for the benefit of the public at large for the purpose of running a Trust, which will spend this amount for the benefit of the public for the purpose of education, health care, etc., does not mean that the Will notwithstanding its defect, can be said to be a Will which is duly proved. I, therefore, agree with the State of Rajasthan that even if the Will is taken on the face value, it is inchoate and does not satisfy the requirement of the law as being complete document itself evincing the intention of the deceased/testator. Similarly, the Will which is exhibited as Exhibit P-1 bears the Test Cas No.26/1987 Page 61 of 91 words „Duplicate duly stamped‟. There is one original typed copy also which Mr. Dayal says is the actual Will which bears a mark in red pencil which is stated to be exhibit mark P-1. But this is not fully legible. It also does not bear the signature of the Judge. Normally, when the document is exhibited by the Court, apart from exhibit number, the Judge puts his signature.
78. The deceased/testator was a highly educated person and was also a bar at law. He must have understood the implications of signing a document bearing the word „Duplicate‟ meaning thereby, there is a principal or main document of which the Exhibit P-1 is duplicate. The original Will is not only supposed to be filed with the probate petition but it is only the original Will which is to be proved because that is the primary evidence which has to be produced before the court. Secondary evidence can, of course, be produced but then those conditions in which secondary evidence is admissible in terms of Section 66 of the Evidence Act have first Test Cas No.26/1987 Page 62 of 91 to be proved by a party and then secondary evidence made admissible.
79. In this regard, the argument of Mr. Ganju, the learned senior counsel seems to have considerable force that document Ex.P-1 being the duplicate, cannot be taken to be as the original Will and that too proved in accordance with law. I do not consider it necessary to refer to the judgments cited by the learned senior counsel in this regard, as it is squarely dependent on the facts of the case and Sections 65 and 66 of the Evidence Act which has been dealt with hereinabove. Non-production of Gokul Anand as witness.
80. Will is a personal document which is made by the deceased/testator visualizing as to how the property must devolve after he disappears from the scene. Therefore, normally a person keeps such a devolution secret and associates only from his closest person, in whom he has implicit faith about their integrity that they would give effect to his wishes after his disappearance. As has emerged from the testimony of PW-1, P.N. Khanna, RW-5, Jaswant Singh, RW-6, Test Cas No.26/1987 Page 63 of 91 Gopal Singh, RW-8, R.K. Singh and from the testimony of PW- 2, Parmeshwar Prasad that Parmeshwar Prasad was very close to the deceased/testator. Similarly, it has also come in the testimony of PW-1, P.N. Khanna, that Gokul Anand was the Personal Assistant or the Secretary, if one may say so, who was the other fellow close to the deceased/testator. He was also present with the deceased/testator at Tis Hazari Courts on 30.10.1985. Normally, in terms of Jaswant Kaur‟s case (supra), the deceased/testator would, in ordinary course, have associated persons with signing of the Will who are closest to him. Moreover, since the Will was being devised for the benefit of the general public, there was no reason to keep it a secret from these two persons. Their not being aware seems to be something curious bordering a suspicious circumstance.
81. In any case, I was considering the fact that in the light of contradicting versions being given by PW-1, P.N. Khanna, and RW-8, R.K. Singh. Gokul Anand, who was stated to be present on 30.10.1985 on Tis Hazari Courts, would have been helpful Test Cas No.26/1987 Page 64 of 91 to solve the mystery of two separate versions. He could have thrown some light on the matter. There is no dispute that Gokul Anand was the Personal Assistant of the deceased/testator and in normal circumstances, the deceased/testator would have associated the person who is closest to him. Even if the benefit of doubt is given to the deceased/testator that it was his own wisdom to associate A or B, still Gokul Anand could have cleared some doubts had he appeared as a witness. Gokul Anand was sought to be summoned by the objectors as a witness, which was allowed by the learned trial court. Normally, the petitioners ought not to have objected to his production as a witness, however, the record shows, the petitioners had preferred an appeal against the order of the learned Single Judge permitting the production of Gokul Anand as a witness which appeal was allowed by the Division Bench of this court. Therefore, though the petitioners are protected by the judicial order passed by the Division Bench regarding the non-production of the one of the closest persons and a Personal Assistant to the Test Cas No.26/1987 Page 65 of 91 deceased/testator, yet, the fact remains that the said judicial order was invited by the petitioners themselves. It was on their appeal that the court had passed such an order only on account of the fact that his production would have caused further delay. I feel that this conduct on the part of the petitioners of preferring an appeal against the production of Gokul Anand also makes me draw an inference against them that they never wanted the doubts which may linger in the mind of the Court from the contradictory testimonies of the witnesses, to be got cleared. This is an important circumstance which makes me draw an inference that this is a very vital suspicious circumstance which does not get removed on account of the non-discharge of burden by the petitioners. Other evidence produced by the respondents
82. RW-1, Badri Narain Nayak, states that he had formed a Society by the name and style of All India Anti-Corruption and Crime Preventive Council and was its General Secretary. He states that he hails from Jaipur, State of Rajasthan and he had met Raja Sahib Sardar Singh of Khetri in the year 1982-1983. Test Cas No.26/1987 Page 66 of 91 He further states that in connection of a complaint lodged by one K.C. Sharma of Jaipur, who was a member of their Parishad, he had gone and met the deceased/testator at his house at Sardar Patel Road, New Delhi. Their he met one Parmeshwar Prasad/PW-2. He identified Parmeshwar Prasad. In his cross-examination, he stated that the complaint was received by him in writing but he had not brought the same. He also stated that no action was taken on the basis of the complaint.
83. RW-2, Kailash Narain Rawat, is a Tehsildar from Jaipur, who stated that certain properties belonging to the deceased/testator were attached in pursuance to invocation of provisions of Rajasthan Escheat Regulation Act, 1956. RW-3, Dwarka Prasad, is a person who testified that he is living in Bazar Sita Ram for the last two decades and they have been in occupation of a portion of Khetri House in Jaipur, which is given as a permanent address. He has also stated that Parmeshwar Prashad used to be the General Attorney of the deceased/testator and he used to look after the affairs of the Test Cas No.26/1987 Page 67 of 91 deceased/testator. He has stated that the deceased/testator died on 30.10.1985 and he remained sick for 3-4 years. In his cross-examination, he has admitted that he has never met the deceased/testator nor he has ever visited his house.
84. RW-4, Rajinder Singh, is one of the objectors, who denied the signatures of the deceased/testator on Exhibit P-1, that is, the Will and Exhibit P-3, the Codicil. He has claimed himself to be related to the deceased/testator as his grandfather, Shiv Singh Ji, was the real brother of the deceased/testator‟s grandfather, Jaswant Singh. In his cross- examination, he has stated that he used to receive the letters written by the deceased/testator but he had not brought the same. At the time of his deposition, he has given his age as 33 years and that of the deceased/testator as 70 years at the time of death. He also stated that he had seen the deceased/testator writing and signing on 2-3 occasions and on that occasions, he had seen Manager bringing papers to the deceased/testator and he had put his signatures. He also Test Cas No.26/1987 Page 68 of 91 denied the suggestion that the Will Exhibit P-1 and the Codicil Exhibit P-3 bears the signatures of the deceased/testator.
85. RW-5, Jaswant Singh and RW-6, Gopal Singh, respectively are the former employees of the deceased/testator. RW-5 worked with the deceased/testator for 10-12 years and was living in the servant quarter at Khetri House, Sardar Patel Road. He is claiming that he retired in 1978 and in his place, his brother Radhey Shyam was employed by the deceased/testator. He has also testified that PW-2, Parmeshwar Prasad, was all in all so far as the deceased/testator is concerned and it was he, who used to take the signatures of the deceased/testator on various documents. He has also stated that the deceased/testator was not having good health since 1980 and he was not mentally sound. In his cross-examination, he stated that as the wife of the deceased/testator had left him in the year 1962, he suffered mental shock. He also admitted that his services have been terminated in the year 1978. RW-6 has also testified to the effect that PW-2, Parmeshwar Prasad, used to Test Cas No.26/1987 Page 69 of 91 look after the affairs of the deceased/testator and it was he who used to get his signatures on documents on which he wanted. The deceased/testator also used to consult PW-2, Parmeshwar Prasad, only with regard to every work. He also stated that he used to live in the Khetri House, Sardar Patel Road. He also stated that the deceased/testator was not enjoying good health after his wife had left him.
86. RW-7, Kusum Lata, LDC in the office of the Registrar, has produced the record from the Registrar‟s office where entries are made with regard to the deposit of the Will of the deceased/testator. The entry in this regard was made at serial No.335 of the register and the names of the witnesses to the Will have been mentioned as P.N. Khanna and R.K. Singh.
87. An analysis of these witnesses which have been produced on behalf of the respondents barring RW-2, Kailash Narain Rawat, Tehsildar, who proved the attachment of properties of the deceased/testator and RW-7, Kusum Lata, who proved the entry of the Will of the deceased/testator in the record of the Registrar, the remaining witnesses are propped up witnesses Test Cas No.26/1987 Page 70 of 91 by the objectors. As a matter of fact, one of the witness is the objector himself. He has withdrawn his objection, therefore, his testimony is of no consequence. This leaves us with the testimony of RW-1, Badri Narain Nayak, who seems to be a propped up witness because he had absolutely no business to meet the deceased/testator and he seems to be running some fake or name sake organization of anti-corruption and has created a situation so that he could only testify with regard to meeting the PW-2, Parmeshwar Prasad. The testimony of RW- 5, Jaswant Singh and RW-6, Gopal Singh, the two of the disgruntled employees, as alleged by the petitioners, are also not of much relevance except that one thing is clear that they say that Parmeshwar Prasad/PW-2 was very close to the deceased/testator. So far as their testimony with regard to the mental state of the deceased/testator is concerned, that is totally unbelievable. As a matter of fact, one of the witnesses have said that the deceased died on 30.10.1985 while as that is the date on which the Will is purported to have been made. The death of the deceased/testator has been proved by a Test Cas No.26/1987 Page 71 of 91 certificate Exhibit P-4 in 1987 which is not disputed by the State of Rajasthan. Therefore, the entire analysis of this evidence is only relevant for the purpose of drawing only one inference that Parmeshwar Prasad/PW-2 was a close person to the deceased/testator and he has also not denied this fact. This will be further fortified by the fact that Parmeshwar Prasad was one of the executors of the Will.
88. The relevance of the testimony of these witnesses and the factum of Parmeshwar Prashad, PW-2, being very close to the deceased/testator acquire significance from the point of view of the submissions made by Mr. Ganju, the learned senior counsel, that it was Parmeshwar Prasad, who was the moving force for the purpose of setting up this Will as it benefitted him.
Allegation of PW-2, Parmeshwar Prasad, moving force for the Will
89. According to the learned counsel Mr. Dayal, the Will bequeathed the entire Estate to charity and the State of Rajasthan is only trying to fish a motive of suspicious Test Cas No.26/1987 Page 72 of 91 circumstance in its execution and has heavily banked upon PW-2, Parmeshwar Prasad for the purpose of fabricating the Will on the basis of so-called improbable circumstance. The State of Rajasthan has suggested that PW-2 may have got blank sheets signed to make a Will and then have them attested by PW-1, RW-8 and thereafter deposited with Tis Hazari Court in the presence of the Registrar after getting their signatures.
90. It has been stated by the learned senior counsel Mr.Ganju that PW-2, Parmeshwar Prasad, was to be paid a sum of Rs.3,000/-, according to the Will, which amount could be increased with a further permission of the High Court while as his services were being utilized by the deceased/testator by paying him a salary of around Rs.2,700/- or so. It was sought to be urged that it was essentially the PW-2, Parmeshwar Prasad, who was the moving force to set up a Will in such a manner so that he continue to get a substantial amount of Rs.3,000/- on perennial basis.
Test Cas No.26/1987 Page 73 of 91
91. The amount of Rs.3,000/- may seem to be very meagre as on date but certainly keeping in view the time when this amount was fixed and especially the fact that the incumbent had a salary of Rs.2,700/-, which was admittedly less than Rs.3,000/-, this could be said to be certainly a substantial amount for the executor, Parmeshwar Prasad, PW-2.
92. This argument of the motive or the personal gain of PW-2, Parmeshwar Prasad, was sought to be refuted by Mr. Dayal, the learned counsel on behalf of the petitioners by urging that no amount whatsoever was drawn by Parmeshwar Prasad till 29.1.2003. For this purpose, the learned counsel submitted that it is clear from the minutes of the Trust meeting dated 29.1.2003 that PW-2, Parmeshwar Prasad, was not paid even a single penny of Rs.3,000//- till just before the date of death in the year 2003. This was contested by the learned counsel for the State of Rajasthan.
93. I have considered this submission of the learned counsel for the parties. Although, there is an accusation qua PW-2, Parmeshwar Prasad, so far as fabrication or forging the Will of Test Cas No.26/1987 Page 74 of 91 the deceased/testator is concerned but I do not feel that there is any credible evidence which can make the court to draw such an inference that the Will has been fabricated or forged on blank papers. Admittedly, PW-2, Parmeshwar Prasad, was a close person to the deceased/testator as has been brought in the testimony of RW-5, RW-6, RW-8 as well as PW-2 himself but the fact of the matter remains that the deceased/testator was an educated even the vigilant person, who would not, in my opinion, have signed blank papers. It is well possible that PW-2, Parmeshwar Prasad, may had some influence in getting the Will made in such a manner he too was benefitted but to say that it was forged and fabricated falls short of any credible evidence. Further, so many people like PW-1, PW-3, RW-8 would not have associated themselves with the Will when they had apparently nothing to gain. It is well possible that he may have been induced by PW-2, Parmeshwar Prasad, to create a Trust for the benefit of the public and under the garb of the Trust, he got an amount of Rs.3,000/- fixed for his own benefit for discharging the duties of executor Test Cas No.26/1987 Page 75 of 91 which benefit was given to other person also. To that extent, he may have been instrumental in getting the Will made but it can‟t be said that it is a case where the Will has been forged by him and then he could manipulate all these persons, namely, PW-1, P.N. Khanna, RW-8, R.K. Singh and for that matter, PW- 3, Daniel Latifi, a reputed senior advocate. Therefore, I feel it is too farfetched to allege that the Will was fabricated or forged by PW-2, Parmeshwar Prasad, but certainly the fact of the matter remains that PW-2, Parmeshwar Prasad, must have manipulated things in such a manner so that the formalities of the Will are sought to be completed at different times without actually making all the three persons, namely, the deceased/testator and the two attesting witnesses to sign simultaneously because RW-8, R.K. Singh, has specifically stated that when he went to Sardar Patel Road, he did not see the deceased/testator and it was PW-2, Parmeshwar Prasad, who made him sign the document in question. To that extent, one can certainly say that this is a suspicious circumstance which goes against the petitioners
Test Cas No.26/1987 Page 76 of 91
94. One of the submissions which was made by Mr. Dayal, the learned counsel for the petitioners was that testimony of PW-3 has been incorrectly recorded wherein he has stated that he has also signed the Will. It was the contention of Mr. Dayal that while referring to the Will, what learned senior counsel wanted to say was that he had signed the „bill‟ and inadvertently, it has got recorded the Will. It has also been contended by him the fact that cross-examination did not pursue this even a single subsequent question has not been put to the witness, it cannot be read in evidence to mean that the Will of the deceased/testator Exhibit P-1 was signed by PW-3, Daniel Latifi.
95. I do not agree with this contention of Mr. Dayal that the word "Will" has been recorded in the testimony of the learned senior advocate inadvertently in place of the word "Bill". First of all, if the testimony of PW-3, Daniel Latifi, is read in its entirety then the word "Bill" in the light of cross-examination, would make no sense. It has to be read as "Will". Subsequently, PW-3, Daniel Latifi, being a senior advocate has Test Cas No.26/1987 Page 77 of 91 put his signatures on his statement after reading and the statement is not very exhaustive that it would have skipped his notice as he was an enlightened advocate, therefore, he would have corrected the same on the first sight itself. This non- correction of his statement by him clearly shows that the word used in his statement is "Will" and it is very surprising to say that he too had put his signatures on the Will while the Will Exhibit P-1 does not bear his signatures. This is also a circumstance which goes against the petitioners. Sound disposing of mind of the deceased/testator
96. So far as the capacity of the deceased/testator to make the Will is concerned, no doubt, one of the requirements of law is that the deceased/testator must be proved to be of a sound disposition. There is no dispute about the fact that the deceased/testator was of sound mind although, the objectors had produced the witnesses, namely, RW-5 and RW-6, the ex- employees of the deceased/testator to contend that the deceased/testator was not of a sound mind, however, I feel that both these witnesses, being disgruntled ex-employees of Test Cas No.26/1987 Page 78 of 91 the deceased/testator, were not truthful and their testimony has to be discarded. It has also not been the submission of the learned senior counsel for the State of Rajasthan that the deceased/testator was not of sound mind. I feel that there is absolutely no reason to doubt that the deceased/testator being highly qualified, having hold such high positions as Member of Rajya Sabha, Member of Constituent Assembly and the Ambassador of Laos and nothing having brought on record to show or draw an inference that he was not of sound mind, makes the court believe that he was perfectly in a sound state of mind.
Suspicious circumstance of death of testator
97. One of the arguments which was put by Mr. Ganju, the learned senior counsel was that his death had occurred in Bombay under suspicious circumstances and, therefore, it was sought to be urged that the Will may not be relied upon. I do not attach any importance to this submission made by the learned senior counsel. The deceased/testator may have died under suspicious circumstances but the fact of the matter Test Cas No.26/1987 Page 79 of 91 remains that no FIR was registered and certificate of death has been issued by a competent authority, it has been proved by the petitioners that the deceased/testator had died in normal course after almost two years from the date of having made the Will, therefore, there is nothing on record or no reason for this court to suspect that the death of the deceased/testator was suspicious.
Khetri Trust and its credentials
98. Mr. Ganju, the learned senior counsel for the petitioners and learned counsel for the State of Rajasthan has also raised the questions with regard to the credentials and credibility of the Khetri Trust. He has contended that the Trust is a sham and further contended that the formation of the Trust and the appointment of its executors is only a ploy to usurp the properties of the deceased/testator. In this regard, the learned counsel has made following points :- (i) No activity carried out by the Trust for the objectives laid down in the Will.
Test Cas No.26/1987 Page 80 of 91 (ii) Meeting held on 29.01.2003 in which Dr. Romila Thapar, Tejbir Singh and Parmeshwar Prasad receive a sum of Rs.5.46 lacs, Rs.3.27 lacs and Rs.5.7 lacs as stipend. The petitioners in this regard have proved various minutes of the meeting of the Khetri Trust which are exhibit PW-2/DC to PW-2/DH. (iii) The Trust is just a sham which was created by late Parmeshwar Prasad to take undue benefits from estate of late Raja of Khetri and he benefited immensely even by selling certain rare movable properties at Sardar Patel Marg. (iv) The Khetri Trust has not been registered under the Rajasthan Trust Act, 1959 and case is pending before Additional Commissioner, Devasthan and numbered as 123/94 and 14/2008.
(v) The present constitution of the Khetri Trust is not in accordance with the manner laid down in the Will. The chain of trustees to be appointed in the form of the incumbent trustees inducting new trustees in the event of death/resignation has not been shown. It is unclear as to how the present persons claim to be trustees of Khetri Trust.
Test Cas No.26/1987 Page 81 of 91 (vi) That Lord Northbrook is a foreigner and claims to be an executor of the Will. However, he is not in position to administer the estate as an executor. In fact, he has constituted various attorneys at various points of time. Initially, Mr. Tejbir Singh was constituted attorney, who is also alleged to be Trustee of the Trust. Later on, Mr. Tejbir Singh, even though earlier trustee of the Khetri Trust has been removed and Mr. Sajjan Narain has been appointed as attorney. However, the applications have been filed on behalf of one Prithvi Raj Singh and Lt. Col. Rajesh Sinha on behalf of Lord Northbrook. Thus, the Lord Northbrook is not having any interest in administration of the estate of the Testator as executor and has been operating at the behest of certain persons. It appears that Tejbir Singh is no longer the trustee of the Khetri Trust. Thus, the trustees are changeable and variable.
99. This contention of Mr. Ganju, the learned senior counsel has been refuted by Mr. Dayal, the learned counsel for the petitioners. It has been contended on behalf of the petitioners Test Cas No.26/1987 Page 82 of 91 that the Khetri Trust, which has been formed by the deceased/testator was on account of the fact that he was a childless widower and to ensure that the properties which are left behind by him are not pilfered but are used for the benefit of the public at large. It was because of this reason that the petitioners have devised a Trust and made PW-2, Parmeshwar Prasad, a confident of the deceased/testator and persons of high repute like Daniel Latifi, senior advocate, Mr. Bhaskar Mitter - Chairman, Exide Ltd., Mr. Narottam Sehgal - ICS Former Home Secretary to Government of India, Dr. Romila Thapar, the Eminent Historian, Mr. Vikram Lal - Chairman, Eicher Ltd., as the Trustees initially. It has been contended by him that with the presence of these persons of high credentials, one could hardly doubt the question of formation of the Trust and its objectives.
100. Although, this is a point which is debatable that the Trust which was formed by the deceased/testator for the benefit of the public where certain doubts have been expressed by the State of Rajasthan on account of various submissions and the Test Cas No.26/1987 Page 83 of 91 points given hereinabove but I feel that it may not be necessary to advert to the said points on account of the fact that the petitioners have, in my opinion, not been able to establish the Will and the Codicil itself by preponderance of probabilities and in accordance with law. Therefore, I do not consider it necessary to deal with this submission of Mr. Ganju. Conclusion
101. For the reasons mentioned above, I am of the considered opinion that following broad factors emerge from the analysis of the evidence:-
1) That the petitioners have not been able to prove the Will Exhibit P-1 and the Codicil Exhibit P-3. The Will is not proved on account of the fact that the testimony of PW-1, P.N. Khanna and RW-8 is dramatically opposite. RW-8 has no reason to speak untruth, which will benefit him personally in any manner whatsoever.
2) The testimony of PW-3, Daniel Latifi, the senior advocate and PW-2, Parmeshwar Prasad, also does not corroborate the testimony of PW-1, P.N. Khanna, on material particulars with Test Cas No.26/1987 Page 84 of 91 regard to the date and the place of signing the Will, as required by law, that is, the deceased/testator and two attesting witnesses signed simultaneously.
3) Non-production of Gokul Anand as a witness, though, the petitioners are under the protection of the orders of the Division Bench is curious and suspicious. No doubt, the order of the learned Single Judge was set aside but the fact of the matter remains that the appeal was filed by the petitioners against his production. He was one of the most important witnesses, who could have cleared the doubts about the place of signing the Will. The reason that his production would have caused delay is not convincing.
4) That the Will which is executed by the deceased/testator is incomplete and lacks material particulars. It talks about bequeathing immovable and movable properties to the Trust mentioned „herein below‟ and no details of the properties are mentioned in the Will itself nor are the copies of the income- tax return or the wealth-tax return attached as the Will says Test Cas No.26/1987 Page 85 of 91 that details of the properties are given therein. The petitioners have independently failed to prove the said documents. 5) PW-3, Daniel Latifi, was produced in rebuttal, has very categorically stated that he had put his signatures on the Will while as the Will Exhibit P-1 does not bear his signatures. PW-3 being a senior advocate would not make an irresponsible statement. Where is this Will which bears the signatures of PW-3? He further states that he is not sure whether RW-8, R.K. Singh, was present on 30.10.1985 when the Will is purported to have been signed by the deceased/testator and deposited with the Registrar. This makes highly probable that RW-8, R.K. Singh, signed the Will on 29.10.1985 at 5, Sardar Patel Marg, New Delhi, and not on 30.10.1985. Further, his testimony that he signed in the presence of PW-2, Parmeshwar Prashad, and not in the presence of deceased/testator, gets proved by the preponderance of probability. This means that even if PW-1, P.N. Khanna‟s testimony is accepted as true, excluding what has been proved by RW-8 and corroborated by PW-3, Daniel Latifi, it does not prove the Will according to Test Cas No.26/1987 Page 86 of 91 Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act.
6) PW-1, P.N. Khanna, does not talk about the presence of PW-3, Daniel Latifi. The presence of Daniel Latifi, who had stated that he was present not in the capacity of his professional duties but only as a personal friend to the deceased/testator would not have gone unnoticed by the PW-1. Therefore, PW-1 is not telling the truth. I would prefer to rely on the testimony of PW-3, Daniel Latifi, being a senior advocate because he would not have made irresponsible and incorrect statement in this regard. RW-8, R.K. Singh, categorically stated that he signed the Will on 29.10.1985 and not on 30.10.1985 at Tis Hazari. Similarly, he says that the Codicil Exhibit P-3 was signed by him in the chamber of PW-3, Daniel Latifi while as PW-1 states that he signed the Codicil Exhibit P-3 at the residence of deceased/testator at 5, Sardar Patel Road, in the presence of RW-8. Further RW-8 states that he did not ever see or met the deceased/testator, therefore, the deceased/testator having put signatures in the presence of Test Cas No.26/1987 Page 87 of 91 RW-8, R.K. Singh is completely ruled out. Because of these reasons, neither the Will Exhibit P-1 nor the Codicil Exhibit P-3 have been signed by the deceased/testator in the presence of both attesting witnesses or at least, RW-8. The attesting witnesses, RW-8 had not seen the deceased signing the Will or the Codicil nor got any acknowledgement personally from him about his signatures. If that be so, the requirement of law is not met.
7) There were many objectors who had raised objection to the grant of probate/the letter of administration but actually each one of them withdrew. The reasons for withdrawal by them are inexplicable. No credible reason for the same has been given. This makes the Court to draw the inference that some forces were behind the scene which made them withdraw their objections leaving the field open for the petitioners but for the opposition of State of Rajasthan.
8) The Will Exhibit P-1 is the duplicate photocopy of the document, the original is not exhibited as it does not bear the mark of exhibit nor the signature of the Judge. The exhibit P-1 Test Cas No.26/1987 Page 88 of 91 and exhibit P-2 bear signature of RW-8 in different inks which shows they were not signed at the same time. PW-1, P.N. Khanna, has admitted that there were duplicate Wills signed by him. In cross-examination, he admits that there may be more than two Wills which he may have signed. If that be so, it is not safe to rely on the testimony of these witnesses and hold that the petitioners have been able to prove the Will Exhibit P- 1 or the Codicil Exhibit P-3 in accordance with law by preponderance of probabilities.
102. Thus, the petitioners have failed to not only prove the Will but also dislodge the suspicious circumstances, some of which are mentioned in conclusion, which makes the court to believe that it is highly unsafe to assume that the Will has been purported to have been executed by the deceased/testator or it is proved in accordance with law. Accordingly, issue no.1 is decided against the petitioners. The petition is dismissed.
Test Cas No.26/1987 Page 89 of 91
103. Since the petition has been dismissed, the question of devolution of the properties would not arise. Section 29 of the Hindu Succession Act, 1956 lays down as under: "29. Failure of heirs. If an intestate has
left no heir qualified to succeed to his or her property in accordance with the
provisions of this Act, such property shall devolve on the Government; and the
Government shall take the property
subject to all the obligations and liabilities to which an heir would have been
104. It has been stated by the deceased/testator in operative portion of his Will that he is a Hindu, even otherwise, there is no dispute about the fact that the deceased/testator was a Hindu. Therefore, the devolution has to be in accordance with law and there cannot be a vacuum. During the course of these proceedings, the Court was informed that in pursuance to Article 296 of the Constitution of India, the State of Rajasthan has passed the Rajasthan Escheats Regulation Act, 1956 and the provisions of Section 6 of the said Act have already been invoked by them and they have taken possession of some of the properties. It is for the State of Rajasthan to decide in Test Cas No.26/1987 Page 90 of 91 accordance with law as to what is to be done with the properties of the deceased/testator.
105. Before closing, I must say a word of appreciation for the counsel for the parties. Since the case was old, it took considerable time to hear the submissions as well as to dictate the judgment. In this regard, the assistance rendered by Mr. Anish Dayal, Advocate for the petitioners as well as efforts of Mr. T.K. Ganju, the learned senior counsel for the State of Rajasthan are highly appreciated.
V.K. SHALI, J.
JULY 03, 2012
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