IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : Indian ... · (d) Mr. Parmeshwar Prashad, Mgr....
Transcript of IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : Indian ... · (d) Mr. Parmeshwar Prashad, Mgr....
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : Indian Succession Act, 1925
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
Dayal, Advocate.
Versus
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.
CORAM:
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 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 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, New
Delhi-110021
AND I HEREBY CANCEL AND REVOKE all my previous Wills and
Codicils.
WHEREAS
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 Returns.1
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 Executor:
(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-110021
(d) Mr. Parmeshwar Prashad, Mgr. Khetri Investment Corporation (P)
Ltd., 1/9, Rani Jhansi Road, New Delhi-110005.
2. I also appoint the said Executors to be Trustees of the Trust hereby
created.
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 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, academics, laboratories, 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 this Trust.
6. The Executors and Trustees shall be entitled to remuneration for their
services to these Trusts at 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.
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
below.
Sd/-
RAJA BAHADUR SARDAR
SINGH OF KHETRI
WITNESSES:
1. sd/-
(P.N. Khanna)
14/15 F, Connaught Place,
New Delhi-1
2. sd/-
(Ravi Karan Singh)
Advocate
C/o 61, Supreme Court
New Delhi-1”
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.
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.
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
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.
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 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 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 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.
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 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.
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 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
disposing mind?
2. Relief.”
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 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 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 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 evidence:
[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 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.
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 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 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. 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 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.
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 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 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, 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 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 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 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.
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.
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 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 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 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 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 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 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 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 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) 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 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 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 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 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.
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 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
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:-
“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
particular form of attestation shall be necessary
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 the Will.”
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 :-
“………………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 elements……………….”
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 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 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.”
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
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 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 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, 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 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 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. 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
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 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 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 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 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 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.
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 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
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
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 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 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 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.
(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.
(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 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 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 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 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 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 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 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.
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 subject.”
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
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.
Sd/-
V.K. SHALI, J.
JULY 03, 2012