Last Updated on October 21, 2020 by Satish Mishra
In this post we will discuss about a case wherein it was decided that onus of proof shall be discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law.
Probate, Letter of Administration and Succession Certificate are legal documents through which rights pertaining to the estate of the deceased are granted. Probate and Letter of Administration are the primary documents through which administrative rights pertaining to the estate of the deceased are validated. The role of Succession Certificate is very limited in comparison with the other two documents. Succession Certificate can be used for acquiring debts and securities but rights pertaining to immovable property and assets that are of significant worth requires grant of Probate or Letters of Administration. According to section 2(f)1 of the Indian Succession Act, 1925 Probate refers to a copy of the will that is certified by the seal of a court of competent jurisdiction. Through Probate, rights pertaining to administration of an estate is granted to the applicant (who is an executor under the will). It is a judicial process through which the validity and authenticity of a will is determined in a court of law. In this process, the executor of the will, beneficiaries, and value of the estate are determined. Probate helps the executor to receive a certification from the court that he is duly authorized to administer the estate of the testator under the will. Even a beneficiary can be appointed as an executor under the will.
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Facts in brief :
The Petitioner has sought probate of the Will dated 20.04.2006, claimed to be executed by Late Harish Chandra, as the executor of the said Will. Vide the aforesaid Will, Testator Late PC No. 5869/2016 Page no. 2 of 123 Shubh K. Kumar Range vs. State & Ors. Harish Chandra is claimed to have bequeathed his share in the immovable property bearing No.D−3/4, Vasant Vihar, New Delhi−110 057 in favour of the petitioner (daughter) and Dr. Ashok K. Chandra (son).The petitioner is that property bearing No. D−3/4, Vasant Vihar, New Delhi, measuring 420 sq. yds was allotted to the Testator Sh. Harish Chandra and his wife Smt. Sushila Chandra. The name of Dr. Ashok Chandra was also recorded as a co−allottee. Thereafter, a Perpetual Sub−Lease dated 28.05.1971 was executed in favour of Sh. Harish Chandra, Smt. Sushila Chandra and Dr. Ashok K. Chandra. It is averred that after the demise of Smt. Sushila Chandra on 02.05.2006, on the basis of a registered Will executed by Smt. Sushila Chandra, portion of the property was mutated in the name of Sh. Harish Chandra, Dr. Ashok K. Chandra, and the petitioner and video Conveyance Deed dated 16.10.2007, they became the owners of the said property. It is averred that Sh. Harish Chandra, during his lifetime, executed a registered Will dated 20.04.2006 in respect of his share PC No. 5869/2016 Page no. 3 of 123 Shubh K. Kumar Range vs. State & Ors. in the property bearing No.D−3/4, Vasant Vihar, New Delhi−57 whereby he bequeathed his share i.e. 1/3rd share, in favour of his two children i.e. son and daughter (petitioner), since one of his daughter Dr. (Mrs.) Manjulika Bahl had predeceased him on 05.06.2005. Testator is stated to have bequeathed a sum of Rs.4,00,000/− each to his grandchildren i.e. Dr. Sandeep Bahl and Dr. Shalini Bahl i.e. children of his deceased daughter Dr. (Mrs.) Manjulika Bahl. Petitioner is claimed to be appointed an Executor of the Will, apart from being one of the beneficiaries to the Will. It is further averred that no other application for grant of probate/letter of administration of the above said Will in respect of the estate/properties left by the deceased testator has been filed. It is further averred that this court has territorial jurisdiction to try and entertain the present petition as the deceased testator was a permanent resident of Delhi and died in Delhi within the jurisdiction of this Court. Despite publication of citation in the newspaper “The Statesman” dated 14.03.2009, proclamation in Saket Court Complex as well as in the office of District Magistrate, none appeared from the General Public/State to join the proceedings.
Issues Involved : The respondents in the case pointed out to the court the fact that the petitioner has not approached the honorable court with clean hands and that the petitioner has taken undue advantage and obtained the share in will with coercion . Further the respondents also stated that the new will was signed just 15 days prior to the day of death and that the parents of the respondents signed the will without reading properly the contents of the will and under undue influence of the petitioner . It was also seen that the will bore a thumb impression of the deceased. Moreover the respondents stated that the testators were old and mentally unfit to understand the contents of the will The petitioner denied all the accusations put forth by the respondents . The petitioner brought to the attention of the court that the respondents were not present and were never in proper contact with the testators , they did not contribute in any matter with respect to the testators and never took any medical care or paid any bills . To summarize the petitioner was trying to establish and averred relationship between the respondents and the testators
In the current case the issues dealt with by the court are as followed
1.Whether the petitioner is entitled to grant of letter of administration/ letter of probate in respect of Will dated 20.04.2006 executed by Sh. Harish Chandra in property No.D−3/4, Vasant Vihar, New Delhi?(OPP) (date of Will was wrongly written as 20.04.2004 in the issues
- Whether the objections filed by the respondents are valid? (OPP)
- Relief EVIDENCE ADDUCED On behalf of the petitioner
The main issue that was taken by the court was to determine who the burden of proof about the mental condition of the testator
Many witnesses from respondents and the petitioners were examined in the court .
Judgements cited : The honorable court has relied on various judgements to pass a decree . The judgement cited are as follows
In Sita Kashyap Thr. LR Ms. Benu Puri vs. Harbans Kashyap & Ors 226 (2016) DLT 150 DB, Hon’ble High Court of Delhi had observed as under: “20. It is well established that the intention of a testator, in executing a Will, is to disturb or interfere with the normal line of succession. Therefore, unless something unusual and grossly unfair is shown in the disposition, the mere fact that some heirs are excluded is not a ground to conclude that it was executed under suspicious circumstances.. what are the “usual suspects” in terms of unnatural circumstances which would make courts pause, and consider whether such features are “suspicious circumstances”
In Rakesh Kumar Gaur & Ors vs. Vipin Gaur 157 (2009) DLT 769 DB, Hon’ble High Court of Delhi observed that:
Mere presence of the beneficiary at the time of execution cannot be a suspicious circumstance.
In P.P.K. Gopalan Nambiar vs. P.P.K. Balakrishnan Nambiar, AIR 1995 SC 1852 it has been observed that to support the proposition that in a registered Will, the endorsement by the Registrar / Sub−Registrar would show that the testator was of sound disposing mind and that it was executed out of her free will and volition and that there must be real, germane and valid suspicious features and not fantasy of the doubting mind.
Reliance was also placed upon the judgment of the Apex Court in Naresh Charan Das Gupta v. Paresh Charan Das Gupta AIR 1955 SC 363 to contend that once it has been proved that a Will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it
In the case of Rani Purnima Devi and Anr. v. Kumar Khagendra Naryan Dev and Anr’s case (supra), the Supreme Court had noted that a Will being registered is a circumstance to prove its genuineness. This is an important factor, but that by itself, will not imply that nothing more needs to be proved. If there are suspicious circumstances regarding its execution, they can certainly be looked into.
In Rajesh Sharma vs. Krishan Kumar Sharma 212 (2016) DLT 562, the Hon’ble High Court has held that
Before holding that a person is of unsound mind, in my opinion, that there must be sufficient medical record showing on preponderance of probabilities any lack of soundness of mind, but in the present case I note that the respondent/objector has not filed any medical record showing unsoundness of the deceased testatrix, much less at the time of the execution of the subject Will
In P.P.K. Gopalan Nambiar vs. P.P.K. Balakrishnan Nambiar & Ors. AIR 1995 SC 1852, it has been held by Hon’ble Supreme Court that: “Though it is the duty of the propounder of the Will to prove the Will and to remove all the suspected features, but there must be real, germane and valid suspicious features and not the fantasy of the doubting mind.
In Guro vs. Atma Singh & Ors. (1992) 2 SCC 507, Hon’ble Supreme Court has held that:
With regard to proof of a will, the law is well−settled that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances.
In Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369, the Supreme Court observed as under:
In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple list between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court’s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.
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In S.R. Srinivasa & Ors vs. Padmavathamma (2010) 5 SCC 274, Hon’ble Supreme Court has observed as under:
Since there were suspicious circumstances, it was necessary for the defendants to explain the same. The registration of the Will by itself was not sufficient to remove the suspicion. The first appellate court also notices that even in cases where the execution of the Will is admitted, at least one attesting witness of the Will has to be examined to receive the Will in evidence.
In the State of Jharkhand & Ors vs. Ambay Cements & Anr. (2005) 1 SCC 368; AIR 2005 SC 4168, the Hon’ble Supreme Court has held as under: “27. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also a settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. Since the requirement, in the instant case, of obtaining prior permission is mandatory, therefore, non−compliance of the same must result in canceling the concession made in favour of the grantee− the respondent herein.”
In Natarajan & Anr vs. Sree Narayana Dharma Sangham Trust 1985 (2) KLF 577, the Hon’ble High Court of Kerala has held as under: “18. If a Will has been registered, that is a circumstance, which may having regard to the circumstances, prove its genuineness.But, the mere fact that a Will is a registered Will, will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists without submitting the evidence of registration to a close examination
In Raja Ram Singh vs. Arjun Singh & Anr. AIR 2002 Delhi 338, it has been held by Hon’ble High Court of Delhi that: “13. ……… In all these cases the Apex Court considered as to what are the suspicious circumstances and came to the conclusion that those have to be judged in the facts and circumstances of each particular case. If, however, the propounder has taken a prominent part in the execution of the Will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the Will and in appreciating the evidence the Court should proceed in a vigilant and cautious manner.
Moreover, if the circumstance raises a suspicion of the Court that the Will does not express the mind of the testator then the Court would be right in rejecting the evidence of the attesting witnesses and scribe as well as of the propounder of the Will with regard to the execution of the Will by the testator. In order to appreciate the credibility of the witnesses, the Court can look into the surrounding circumstances. The mere fact that the Will was registered by PC No. 5869/2016 Page no. 79 of 123 Shubh K. Kumar Range vs. State & Ors. itself is not a circumstance to show that the Will is genuine. Nor this circumstance in itself is sufficient to dispel the suspicion regarding the validity of the Will where suspicion exists.” (x) In Kishan Singh Ahluwalia vs. Sheela Saxena & Ors., the Hon’ble High Court of Madhya Pradesh (Gwalior Bench) observed as under: “In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple his between the plaintiff and the defendant. In such cases, it becomes a matter of the Court’s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.
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Findings of the court :
The court after going through the contentions put forth by both the parties, examination and cross examination of all the witnesses on record and examining the will with caution the court held that the onus shall be discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law. The contestant opposing the will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same.
Further the court stated that the testator is 95 year old and it is safe to assume that he did not put his mind in the correct state to look through and read the contents of the will. Moreover the court stated that Instance of suspicious circumstances would be alleged signatures of the testator being shaky and doubtful, condition of the testator’s mind being feeble and debilitated, bequest being unnatural, improbable and unfair. Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by the one who propounds the will. It is important to take into consideration that the he Testator was 95 years of age and having regard to the general and common age related degeneration of physical and mental health, the burden too heavily rested upon the petitioner to prove that his mental faculties were intact and he was capable of making rational decisions. Having regard to the age of the Testator, the threshold of shifting of onus was much higher. After going through the contentions put forth by the petitioner and evidence on record the petitioner has failed to prove otherwise and the court is of the opinion that the document is surrounded with suspicion. Moreover the court pointed out that the trial court and the appellate court have committed a grave error and accordingly the court is of the opinion that there are certain suspicious circumstances, from within and without the Will, and surrounding the Will, which have gone unexplained and the Court’s conscience has not been satisfied with the evidence, credibility of the witness, testamentary capacity of the Testator and mannerism of the registration. As such the petition is liable to be dismissed. Both these issues are decided against the petitioner.
Hence, the petition was dismissed and the will of the testator before signing the current will was considered appropriate and legal.
Conclusion
By taking instance of the above case it is quite clear that he onus, therefore, is on the propounder to prove that the Will was by a free and capable testator and if there are suspicious circumstances surrounding the execution of the Will and its attestation the propounder has to remove them to the satisfaction of the Court. The burden is still greater where the execution of the Will is surrounded by suspicious circumstances in which case the propounder has to prove affirmatively that the testator knew and approved of the contents of the Will. Further, the proof of the signature of the testator in the Will is a vital matter which requires to be proved. It is true that the evidence insisted by the law is that of the attestator but that is not to say that any other kind of evidence is shut out by law.
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This post is written by Yoshita Gwalani.
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