MANU/SC/0450/2020

Equivalent/Neutral Citation: AIR2020SC 2614, 2020(4)ALD82, 2020(4)BLJ400, 2020 (2) C C C 72 , 2020(4)C TC 429, 2020(3)HLR442, 2020 INSC
397, 2021(2)MhLj66, 2020(2)RC R(C ivil)613, (2021)11SC C 209, 2020 (9-10) SC J 1, [2020]6SC R357

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3688 of 2017
Decided On: 19.05.2020
Kavita Kanwar Vs. Pamela Mehta and Ors.
Hon'ble Judges/Coram:
A.M. Khanwilkar and Dinesh Maheshwari, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Kamini Jaiswal, Abhimanue Shrestha, Rani Mishra and
Jatinder Pal Singh, Advs.
For Respondents/Defendant: Arjun Harkauli, Prateek Garg, Aarzoo Khurana, Prosenjeet
Banerjee, Nidhi Mohan Parashar, Shreya Singhal, Pratyaksh Sharma, Prachi Dutta and
Sarvesh Singh, Advs.
Case Category:
PERSONAL LAW MATTERS - MATTERS RELATING TO TESTAMENTARY SUCCESSION
Case Note:
Family - Will - Rejection of probate - Appellant was younger daughter of
testatrix and was shown as executor of Will in question - Appellant had filed
the petition seeking probate that had been declined by Trial Court and High
Court - Trial Court and High Court declined prayer of Appellant for grant of
probate in relation to Will in question essentially after finding several
unexplained suspicious circumstances surrounding Will in question - Hence,
present appeal - Whether Trial Court and High Court were justified in
declining to grant probate in relation to Will.
Facts:
The Appellant was the younger daughter of the testatrix. She was shown as
the executor of the Will in question and she was the major beneficiary
thereunder, though with certain conditions. She had filed the petition seeking
probate that has been declined by the Trial Court and the High Court.
Respondent No. 1 was the elder and widowed daughter of the testatrix. The
conditions stated in the contested Will were purportedly aimed at making a
provision for her residence. Initially, she did not file the written statement of
contest but at the later stage of proceedings and during the evidence of the
Appellant, she attempted to file her written statement. The prayer of the
Appellant for grant of probate in relation to the Will in question had been
declined concurrently by the Trial Court and by the High Court essentially
after finding several unexplained suspicious circumstances surrounding the
Will in question.
Held, while dismissing the appeal:

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(i) There had not been any question on the testamentary capacity and
soundness of mind of the testatrix and her handwriting as also signatures on
the Will in question were also beyond controversy. However, the Trial Court
and the High Court had concurrently found some such suspicious
circumstances which are of material bearing and which had remained
unexplained. The unexplained suspicious circumstances so found were that
Appellant, the major beneficiary, played an active role in execution of the Will
in question and attempted to conceal this fact before the Court, that there
had not been any plausible reason for non-inclusion of the only son and other
daughter of the testatrix in the process of execution of the Will and for
excluding them from the major part of the estate in question, that there was
no clarity about the construction supposed to be carried out by the Appellant,
that the manner of writing and execution of the Will with technical and legal
words was highly doubtful and that the attesting witnesses were unreliable
and there were contradictions in the statements of the witnesses. Because of
these major circumstances coupled with various supplemental factors, the
Trial Court and the High Court felt dissatisfied on the root question as to
whether the testatrix duly executed the Will in question after understanding
its contents. [27]
(ii) The factor of unexplained unequal distribution of the property was
confounded by two major factors related with making of the Will in question
one, the active role played by the Appellant in the process; and second, the
virtual exclusion of the other children of testatrix in the process. As noticed,
an active or leading part in making of the Will by the beneficiary thereunder
had always been regarded as a circumstance giving rise to suspicion but, like
any other circumstance, it could well be explained by the propounder and/or
beneficiary. In the present case, it was not in dispute that out of the three
children of testatrix, the Appellant alone was present at the time of execution
of the Will in question. As noticed, at the relevant point of time, the Appellant
was admittedly living away and in a different locality whereas testatrix was
residing at the ground floor of the building and the Respondent No. 1 was at
the first floor. Even if leave aside the case of the Respondent No. 2 who was
living in Shimla, there was no reason that in the normal and ordinary course,
the testatrix would not have included the Respondent No. 1 in execution of
the Will in question, particularly when she was purportedly making adequate
arrangements towards the welfare of Respondent No. 1. In other words, if the
Will in question was being made without causing any prejudice to the
Respondent No. 1, there was no reason to keep her away from this process.
Admittedly, the Will in question was not divulged for about three years.
Therefore, the added feature surrounding the execution of the Will had been
of unexplained exclusion of the Respondent No. 1 from the process. [29.3]
(iii) The active participation of the Appellant in making of the Will in question
could not be left aside as one of the minor factors for the reason that the
Appellant indeed attempted to project a face of innocence by suggesting that
the testatrix did not discuss the Will with her, that she was not aware as to
who drafted the Will and where was it typed, and that she came to know
about the Will. The Appellant even stated that she did not call the witnesses
and that the testatrix herself might have called them. The witness had clearly
contradicted the Appellant by deposing that, it was the Appellant who invited

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him to her mother's place. Thus, the Appellant, by her conduct of attempting
to avoid the fact that she was aware of making of Will, at least two days
before its execution, has only strengthened the suspicion arising because of
her active participation in execution of the Will while keeping the other
children of the testatrix excluded from the process. [29.4]
(iv) The Will in question was surrounded by various suspicious circumstances
which are material in nature and which have gone unexplained. The
cumulative effect of these suspicious circumstances is that it cannot be said
that the testatrix was aware of and understood the meaning, purport and
effect of the contents of the Will in question. The Appellant, while seeking
probate, had not only failed to remove and clear the aforesaid suspicious
circumstances but had even contributed her own part in lending more weight
to each and every suspicious circumstance. The Will in question could not be
probated from any standpoint. [31]
(v) The High Court had rightly observed that even if this third page is
assumed to be existing, it did not remove the suspicious circumstances but
the High Court has stopped short of going a little further and had not noticed
that volte-face of the Appellant regarding this third page tilts the
preponderance of probabilities heavily, rather conclusively, against her.
Noteworthy it was that the said third page had not been exhibited in
evidence. The flip-flops of the Appellant regarding this third page compels to
examine several of the possibilities concerning other assets of the testatrix.
[35]
(vi) The thick clouds of suspicious circumstances are hovering over the Will in
question which had not been cleared rather every suspicious circumstance is
confounded by another and the curious case of the alleged third page of the
Will effectively and completely demolishes the case of the Appellant. Put
differently, it was difficult to be satisfied that what is literally coming out of
the document in question had been the last wish and desire of the testatrix
as regards succession of her estate. On the contrary, we find enough and
cogent reasons to affirm the material findings of the Trial Court and the High
Court that it could not be said that the testatrix executed and signed the
document in question as her Will after having understood the meaning, effect
and purport of the contents. [37]

Ratio Decidendi:
An unfair disposition of property or an unjust exclusion of the legal heirs,
particularly the dependants, is regarded as a suspicious circumstance.

JUDGMENT
Dinesh Maheshwari, J.
INTRODUCTION WITH BRIEF OUTLINE
1 . This appeal by special leave is directed against the judgment and order dated
27.06.2014 in FAO No. 36 of 2010, whereby the High Court of Delhi at New Delhi has
dismissed the appeal preferred by the present Appellant and has affirmed the judgment

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and order dated 23.11.2009 as passed by the Additional District Judge, West District,
Tis Hazari Courts, Delhi in Probate Case No. 465 of 2006, resulting in rejection of the
Appellant's prayer for grant of probate in relation to the Will dated 20.05.2003, said to
have been executed by the mother of the contesting parties1.
2. The prayer of the Appellant for grant of probate in relation to the Will in question has
been declined concurrently by the Trial Court and by the High Court essentially after
finding several unexplained suspicious circumstances surrounding the Will in question.
Being aggrieved, the Petitioner-Appellant, who was appointed as the executor of the
Will in question and who was, admittedly, the major beneficiary thereunder, has
preferred this appeal while maintaining that execution of Will by the testatrix with due
compliance of all the requirements of law has been clearly established on record and
there has not been any such suspicious circumstance which might operate against the
genuineness of the Will in question.
3. Therefore, essentially the point for determination in this appeal is as to whether the
Trial Court and the High Court were justified in declining to grant probate in relation to
the Will dated 20.05.2003 as prayed for.
THE PARTIES AND THE WITNESSES
4 . For comprehension of the subject-matter and for effective determination of the
questions raised in this appeal, we may take note of the principal parties and the
witnesses involved in the matter with their respective roles as infra:
4.1. The testatrix:
Smt. Amarjeet Mamik wife of Lt. Col. (Rtd.) D.S. Mamik.Her husband
Lt. Col. (Rtd.) D.S. Mamik had expired on 20.10.2002. The testatrix
herself expired on 21.05.2006, leaving behind two daughters and one
son, who are the contesting parties herein.
4.2. The Appellant: Smt. Kavita Kanwar
She is the younger daughter of the testatrix. She is shown as the executor of
the Will in question and she is the major beneficiary thereunder, though with
certain conditions. She had filed the petition seeking probate that has been
declined by the Trial Court and the High Court.
4.3. Respondent No. 1: Smt. Pamela Mehta2
She is the elder and widowed daughter of the testatrix. The conditions stated in
the contested Will are purportedly aimed at making a provision for her
residence. Initially, she did not file the written statement of contest but at the
later stage of proceedings and during the evidence of the Appellant, she
attempted to file her written statement. However, the prayer so made by her
was declined by the Trial Court. Nevertheless, she has continuously contested
the matter, as shall be noticed hereafter.
4.4. Respondent No. 2: Col. (Rtd.) Prithiviraj Mamik3
He is the son of the testatrix. By way of bequeath in the Will in question, he has
been given 'credit balance' lying in the bank accounts of the testatrix but with
clarification that he shall not inherit any portion of the immovable assets of

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 testatrix. He had filed the written statement and has consistently contested the
claim for probate of the Will in question.
4.5. The attesting witnesses:
PW-2: Shri. Urvinder Singh Kohli, who is said to be a friend of the
Appellant and his daughter got married to the son of a cousin of the
Appellant; and PW-3: Major General Manjit Ahluwalia, who is son of
the sister of testatrix.
THE IMMOVABLE PROPERTY INVOLVED: ANNALS AND DESCRIPTION
5. We may also notice at the outset that the immovable property, a part whereof forms
the subject of bequeath and which is the major bone of contention in this case, has its
own chronicle of different transfers as per the desire of its original owner, father of the
contesting parties. For comprehension of the relevant factual aspects as also salient
features of this case, it is equally necessary to take note of the description of
immovable property in question as also the past dealings in relation thereto.
5.1. The property in question is identified as bearing number D-179, Defence Colony,
New Delhi admeasuring 325 square yards and comprising of a building having ground
floor, first floor, terrace and annexe block of garage and servant quarter. The whole
property originally belonged to Lt. Col. (Rtd.) D.S. Mamik, father of the contesting
parties who, in his lifetime, gifted the ground floor of this property to the Appellant by
way of a registered Gift Deed dated 25.01.2001; and thereafter, he bequeathed the
remaining portion/s, that is, the first floor, terrace and the annexe block of garage and
servant quarter in favour of his wife Smt. Amarjeet Mamik through a registered Will
dated 14.02.2001. Lt. Col. (Rtd.) D.S. Mamik expired on 20.10.2002. Hence, after his
demise, Smt. Amarjeet Mamik, mother of the contesting parties, became owner of the
first floor and other portions of the said property except the ground floor.
5.2. It is also noteworthy that at the time of execution of the contested Will dated
20.05.2003, the testatrix Smt. Amarjeet Mamik was residing at the ground floor of this
property (which had otherwise been gifted to the Appellant by her father). The first
floor of this property (which had otherwise been bequeathed to the testatrix by her
husband) has remained in occupation of Respondent No. 1, the widowed daughter of
the testatrix.
THE WILL IN QUESTION
6. The contested Will dated 20.05.2003 has been placed on record as Ex. PW1/H. A vast
variety of features related with this Will form the subject of dispute in this case. The
Trial Court and the High Court have also analysed and taken into account several of the
suspicious circumstances surrounding this Will and the long length of arguments of the
learned Counsel for the contesting parties in this appeal have also revolved around this
Will. Having regard to the questions involved, it would be apposite to take note of the
features and attributes of the contested Will to appreciate the stand of the contesting
parties as also the findings in the impugned judgments.
6.1. The contested Will is drawn up in two pages. It is a partly holograph document in
the manner that its opening and concluding passages/clauses are handwritten whereas
the other paragraphs/clauses are of electronic print. This Will is said to have been
executed on 20.05.2003 by Smt. Amarjeet Mamik while residing on the ground floor of
the property in question at D-179, Defence Colony, New Delhi in the presence of the

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attesting witnesses and the Appellant.
7. The Will in question reads as under:
WILL
I Amarjit Mamik aged 77 years w/o Lt. Col. (Retd.) D.S. MAMIK r/o
Ground floor D. 179, Defence Colony New Delhi - 110024 c/o hereby
make This my will and testament on This 20 day of May 2003 at New
Delhi.
1 . WHEREAS I was married to Lt. Col. (Rtd.) D.S. Mamik from which
union the following children were born:
1. Mrs. Pamela Mehta - Daughter, aged 60 years
2. Col. (Rtd.) Prithivijit Mamik - Son, aged 57 years
3. Mrs. Kavita Kanwar - Daughter, aged 50 years
2. AND WHEREAS my said husband was the owner of the said building
bearing No. D-179, Defence Colony, New Delhi - 110024, constructed
on a plot of land admeasuring 325 sq. yds. and comprising of a ground
floor, first floor, terrace thereon and the annexe block of garage and
servant quarters thereon.
3. AND WHEREAS during his life time my said husband had executed a
duly registered Gift Deed dated 25.1.2001 in respect of the ground
floor of the said building in favour of my aforementioned youngest
daughter Mrs. Kavita Kanwar who has after the execution of the said
Gift Deed granted a licence to use the same floor for my residential
purposes out of natural love and affection.
4 . AND WHEREAS my said husband has vide Will dated 14.2.2001,
validly executed and duly registered, bequeathed to me the first floor,
the terrace thereon and all other portions of the said building,
hereinafter referred to as the property, save and except the said ground
floor of the same building.
I am in my full senses and disposing mind and I fully understand what is right
and wrong. I am on my own accord voluntary, without any force, pressure,
coercion or influence of any kind am making this Will in order to direct as to
the manner of the inheritance of my aforementioned assets upon my demise. I
hereby and hereunder revoke any wills or codicils that I may have made in the
past.
1 . I hereby give, devise and bequeath to my youngest daughter the
said Mrs. Kavita Kanwar my entire share in the aforementioned
immovable property, namely the first floor and the terrace including all
other portions, save and except the ground floor with specific
directions that my said daughter Mrs. Kavita Kanwar will carry out
either of the 2 options as deemed proper by her, namely
(a) construct on the terrace of the said building such
residential facility of such covered area as is permissible under
the Municipal Building Bye-laws at the time of my demise and

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 hand over possession of the same construction to my elder
daughter, namely Mrs. Pamela Mehta, who shall thereafter
acquire sole exclusive title to the said portion with the terrace
rights thereon continuing to vest in favour of the said Mrs.
Kavita Kanwar,
OR
(b) demolish the said building and carry out such new
construction as is permissible under the Municipal Building
Bye-laws and be the sole exclusive owner of the entire building
thus constructed, save and except such constructed residential
portion on the highest floor of such building, which portion
shall vest solely and exclusively in favour of my said elder
daughter Mrs. Pamela Mehta, while the terrace rights thereon
shall continue to vest in favour of my said daughter Mrs. Kavita
Kanwar.
2. I also direct that in the event of my acquiring any further movable or
immovable assets hereinafter or any other assets that I may have
forgotten to mention in the present Will the same shall devolve upon
my daughter Mrs. Kavita Kanwar.
3. I hereby give, devise and bequeath to my son, Col. Prithivijit Mamik,
the credit balance lying in my Bank Accounts. I however, clarify that
my said son shall not inherit any portion of my aforementioned
immovable assets.
4 . I hereby appoint my said daughter Mrs. Kavita Kanwar as the
Executor of my Will.
In witness whereof, I Amarjit Mamik have set and subscribed
my hand to this my last will as also to each of the 2 pages that
comprise it having understood the contents thereof and
endorsing thereby and giving my approval to the bequest made
therein.
I fully endorse the manner in which my assets shall devolve as
stated hereinabove in my will made out in 2 pages. Each of
which page has been signed by me.
Signed by the Testator in the Amarjeet Mamik
presence of the witnesses and the Testator
witnesses have signed in the
presence of the Testator (Sd/- )

Witness No. 1: (Sd/- )

Maj. Gen. Manjit Ahluwalia D-34
Defence Colony 20 May 2003
Witness No. 2: (Sd/- )
(Sd/- ) 20/5/03 Urvinder S. Kohli

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 S/o S. Navinder S. Kohli
227 Jor Bagh N. Delhi
(Note: The bold italicised portions are in the handwriting of the testatrix
whereas unbold italicised portions are in the handwriting of the respective
witnesses. All other contents are of electronic print)
SUMMARY OF PLEADINGS, ISSUES AND EVIDENCE AS ALSO THE RELEVANT
PART OF PROCEEDINGS IN THE TRIAL COURT
8. Having taken note of the particulars of the parties and the property involved as also
the contents of the Will in question, we may now summarise the pleadings of the
parties, the issues framed by the Trial Court, the material aspects of evidence led by the
parties and the relevant part of the proceedings in the Trial Court, which have bearing
on the questions involved herein.
8.1. Briefly put, the petition leading to this appeal was filed by the Appellant on
06.11.2006 in the Court of District Judge at Delhi Under Section 276 of the Indian
Succession Act, 19254 for grant of probate of the Will in question, said to have been
executed by her mother Smt. Amarjeet Mamik while arraying the State (N.C.T., Delhi)
as the party Respondent. Thereafter, by filing amended memo of parties, the present
Respondent Nos. 1 and 2 were arrayed as Respondent Nos. 2 and 3 respectively. The
Appellant stated the facts relating to the children of the testatrix as also the said gift of
the ground floor made by the father in her favour and then, asserted in the petition that
by the Will in question, the testatrix had bequeathed the first floor and other portions
except the ground floor of the said property at No. D-179, Defence Colony, New Delhi
in her favour with directions to carry out one of the two options, i.e., either to construct
on the terrace of the first floor of the said property or to demolish the said building and
to re-construct and give the highest floor of the said building to Mrs. Pamela Mehta
(other daughter of testatrix) while retaining the terrace rights thereon; and had
bequeathed the balance in her savings bank account maintained with Central Bank of
India in favour of her son Col. (Rtd.) Prithivijit Mamik. While stating that the Will in
question was duly executed in the presence of the aforesaid two witnesses and that the
testatrix expired on 21.05.2006, the Appellant asserted that she was the executor and
beneficiary of the Will in question and was entitled to seek its probate.
8.2. For their relevance, we may usefully take note of the material contents of the said
petition as also those of Schedule A and Schedule B attached to the petition, giving out
respectively the particulars of the natural heirs of the deceased Smt. Amarjeet Mamik
and a list of assets of the deceased as under:
*** *** ***
4 . That the "WILL" dated 20.05.2003 was duly executed by Smt. Amarjeet
Mamik in the presence of two witnesses namely Major Gen. Manjit Ahluwalia r/o
D-34, Defence Colony, New Delhi and Sh. Urvinder S. Kohli s/o S. Narinder S.
Kohli r/o 227 Jor Bagh, New Delhi-110003.
5 . That the deceased was the owner of first floor, the terrace thereon and all
other portions of premises No. D-179, Defence Colony, New Delhi-110024,
save and except the ground floor of the said building, as mentioned in the will
and the said property, is likely to come to the hands of the Petitioner and her
sister namely Mrs. Pamela Mehta as per the "WILL".

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6. That the husband of the deceased was the owner of property bearing No. D-
179, Defence Colony, New Delhi-110024 constructed on a plot of land
measuring 325 square yards and comprising of a ground floor, first floor,
terrace thereon and an annexe block of garage and servant quarters thereon.
7 . That during his lifetime the husband of the deceased had executed a duly
registered gift deed dated 25.01.2001 in respect of the ground floor of the said
building in favour of his youngest daughter i.e. Smt. Kavita Kanwar.
8 . That the husband of the deceased vide 'Registered Will' dated 14.02.2001
bequeathed to the deceased the first floor, the terrace thereon and all other
portions of the said building to the deceased, save and except the ground floor.
9 . That Smt. Amarjeet Mamik died on 21.05.2006 at Delhi within the
jurisdiction of this Court.
10. That the deceased Smt. Amarjeet Mamik was a Hindu by religion and she
left behind, besides the Petitioner the following relatives/legal heirs:
(i) Mrs. Pamela Mehta Daughter
(ii) Col. (Rtd.) Prithivijit Mamik Son
The complete addresses of the above heirs are given in the annexures marked
as Schedule 'A' attached with this petition. Except the above legal
representatives there is no legal heir of the first class as mentioned in the
Hindu Succession Act.
1 1 . That the Petitioner is one of the beneficiaries of the "WILL" dated
20.05.2003 and the Petitioner is also the executor of the said "WILL". The
immoveable property which is likely to come to the hands of the Petitioner is
having the worth of about Rs. 18 Lakhs.
12. That the assets which are likely to come in the hands of the Petitioner are
the first floor and other portions of the property No. D-179, Defence Colony,
New Delhi-110024 save and except the ground floor of the building and to carry
out the two options of constructing either on the terrace of the first floor of the
said building or to demolish the said building and to re-construct and give
highest floor of the said building to Mrs. Pamela Mehta and retaining the terrace
rights there on.
13. That the balance in the Savings Bank account No. 1001020597 maintained
with the Central Bank of India, Defence Colony, New Delhi as mentioned in the
Schedule-B attached to the petition will go to Col. (Rtd.) Prithivijit Mamik and
the Petitioner does not claim the same.
*** *** ***
SCHEDULE A
Name and Addresses of the L. Rs of the deceased Smt. Amarjeet Mamik

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 *** *** ***
SCHEDULE B
IMMOVEABLE PROPERTY:
First floor, the terrace thereon and all other portions of premises No.
D-179, Defence Colony, New Delhi-110024, save and except the
ground floor of the said building.
MOVEABLE ASSETS:

*** *** ***

9 . The said petition seeking probate was eventually transferred to the Court of
Additional District Judge, Delhi for consideration. After requisite publication and due
notice, the Respondents put in appearance but, on 18.04.2007, it was given out on
behalf of the present Respondent No. 1 that she did not wish to file objections to the
petition. However, the objections with documents were indeed filed on behalf of the
present Respondent No. 2, who refuted the claim of the Appellant and contended, inter
alia, that the Will in question was forged and fabricated, where the Appellant was the
major beneficiary as also the executor; that there was no reason for exclusion of the
Respondents and grandchildren from the legacy; and that the property in question being
an ancestral property, belongs to all the legal heirs of late Shri D.S. Mamik. The
replying Respondent maintained that there existed no dispute between testatrix and
himself and there was no reason for the mother to have excluded him from the Will. He
also contended that the property bequeathed in favour of the Appellant was worth
crores of rupees and hence, it was impossible to comprehend that his mother had left
him merely a sum of Rs. 5,77,389/- when the relations between him and his mother
were cordial.
1 0 . The Trial Court framed the following issues for determination of the questions
involved in the matter:
1 . Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik is proper and
valid? OPP
2 . Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik is forged and
fabricated? OPR-3

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 3 . Whether the Petitioner is entitled to the grant of Probate/Letter of
Administration in respect of Will dated 20-5-2003 of Smt. Amarjeet Mamik? OPP
4. Relief
1 1 . In evidence, the Appellant examined herself as PW-1; and the two attesting
witnesses of the contested Will, Shri Urvinder Singh Kohli and Major General Manjit
Ahluwalia as PW-2 and PW-3 respectively. Shri Nikhil Kanwar, son of the Appellant, was
also examined as PW-4. In documentary evidence, the Will in question was marked as
Ex. PW1/H.
11.1. It had been the consistent case of the Appellant that she had no prior knowledge
that the Will was being executed on the given day and that it was the testatrix who
invited the Appellant to her residence. The Appellant asserted in her evidence that only
after reaching her mother's house on the given day, it came to her knowledge that her
mother was executing a Will. She further stated that she was not aware of the contents
of the Will. It had also been the assertion of the Appellant that her parents had special
love and affection for her and that had been the reason for them having gifted and
bequeathed the said property to her only. The Appellant also stated in the cross-
examination: (i) that she did not know the educational qualification of the testatrix but
she (testatrix) knew how to read and write in English; (ii) that she and the testatrix
were not residing together for the last 20-22 years; (iii) that the testatrix neither
discussed the contents of the Will with her nor mentioned as to who had drawn and
typed the Will in question; (iv) that she came to know about the existence of the Will
on 20-21 May, 2003; (v) that her mother had not called Respondent Nos. 1 and 2 on
the day of execution of the Will; (vi) that Respondent No. 1 was living on the floor
above the testatrix and was looking after the testatrix, who was suffering from cancer;
(vii) that the testatrix had called the attesting witnesses; (viii) that she did not know
when the testatrix discussed the Will with the Respondents; (ix) that the testatrix had
discussed the contents of the Will with the attesting witnesses (x) that she remembered
the testatrix writing something but was not sure whether it was on the Will or
something else5; and (xi) that the relations of the testatrix and the Respondent No. 2
were strained.
11.2. PW-2 and PW-3, the attesting witnesses, both specifically deposed that on their
arrival at the house of Smt. Amarjeet Mamik, they found that the Appellant was already
present there; that the testatrix wrote something on the Will in their presence before
signing it; and that they were unaware of the contents of the Will as the same was not
discussed with them. PW-2 also maintained that on 18.05.2003, the Appellant had
called him to the house of her mother on 20.05.2003. On the other hand, PW-3 deposed
that it was the testatrix who invited him to her house that day; that he was having good
relations with the Appellant and the Respondents; that the testatrix was having good
relations with Respondent No. 2 and also that when Smt. Amarjeet Mamik wrote
something on the Will, she copied it from a draft which she had with her.
1 2 . In opposition, the contesting Respondents deposed as R2W-1 and R3W-1
respectively. Shri Ram Gopal Meena from the Post Office, Defence Colony was examined
as R3W-2; Shri S.P. Sharma from State Bank of India as R3W-3; Shri R.S. Negi from
Defence Colony Association Club as R3W-4; and Shri S.P. Khamra from Central Bank of
India was examined as R3W-5. Several documents produced by the Respondents like
family photographs, birthday card sent by testatrix to Respondent No. 2 etc. shall also
be referred to at the appropriate juncture, to the extent of relevancy.

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12.1. The Respondent No. 1 in her evidence, inter alia, deposed that their mother was
not even 10th standard pass and that she was having cordial relations with herself as
also with the Respondent No. 2.
12.2. The Respondent No. 2 in his evidence, inter alia, deposed that he was having
good relations with his mother; and, as he was serving in Indian Army, the mother
would talk to him over the phone and would even send letters and birthday card
wishing him all the happiness.
13. Before proceeding further, one of the peculiar aspects of the matter, which carry its
own bearing on the relevant questions and emanates from the record of proceedings of
the Trial Court, may be noticed as infra.
13.1. It appears that at the initial stage of proceedings in the Trial Court, the relations
of the Appellant and the Respondent No. 1 (who was Respondent No. 2 in the Trial
Court) had not gone into any discord. As noticed, the present Respondent No. 1 stated
before the Trial Court on 18.04.2007 that she did not wish to file any objections to the
petition. However, it appears that during the course of evidence of the Appellant,
differences and disputes spurted between the Appellant and the Respondent No. 1 and
the Appellant filed a separate civil suit for injunction against the Respondent No. 1. In
sequel to this new position of conflict of interests, the Respondent No. 1 attempted to
put forward direct contest of the petition seeking probate and, on 24.03.2008, moved
an application Under Section 151 of the Code of Civil Procedure ('CPC') before the Trial
Court, seeking opportunity of further cross-examination of the Appellant. In this
application, the Respondent No. 1, inter alia, raised a plea about the alleged third page
of the Will in question. The application so moved was rejected by the Trial Court on
25.03.2008 and, as regards the point concerning the alleged third page of the Will, the
Court observed as under:
25.03.2008
*** *** ***
Point No. 2: From the point No. 2, it appears that Respondent No. 2 now is
raising a totally different and new stand regarding the 3rd page of the Will. She
has not produced the original or copy of the alleged 3rd page along with this
application. The story of this 3rd page has come on record first time through
this application which cannot be believed when nothing in this regard was
asked in the cross examination of PW-1. Non filing of any objections against
this Will despite taking opportunities prima facie leads to the inference that
Respondent No. 2 accepted the Will as correct. She was also given some
portion in the property under the Will and thus kept quite without disputing Will
and now is challenging the genuineness of the Will all of a sudden simply on
the ground that Petitioner has filed a civil suit for injunction claiming exclusive
ownership of the property.
In the probate proceedings, the question of the ownership or title is not decided
and court is only concerned with the fact whether the Will is genuine or not.
Counsel for the Petitioner during arguments stated that the rights given to the
Respondent No. 2 under the Will shall be protected. Keeping in view these
above circumstances, I am of the view that no permission can be granted to the
Respondent No. 2 to cross examine further at point No. 2 mentioned in para No.
4 of the application.

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13.2. On 24.03.2008, another part of the proceedings had been that the Court closed
the opportunity for cross-examination of some of the witnesses of the Appellant by the
Respondent No. 2. After the aforesaid proceedings, an application Under Order IX Rule
7 Code of Civil Procedure was filed on behalf of the Respondent No. 2. On the other
hand, an application seeking permission to file written statement and for condonation of
delay was filed on behalf of the Respondent No. 1. In that application, the present
Respondent No. 1 again referred to the alleged third page of the Will; and such an
assertion was again emphatically denied by the Appellant while maintaining that the
Will in question was only in two pages and there was no third page of the Will as
alleged.
13.2.1. The aforesaid two applications were dealt with by the Trial Court in its order
dated 03.07.2008. While the application filed by the Respondent No. 2 was granted on
costs but the application moved by the Respondent No. 1 was rejected with costs. In
regard to the aspects concerning the alleged third page of the Will, the Trial Court,
observed as under:
In this application Under Section 5 of Limitation Act, Respondent No. 2 has
relied upon alleged 3rd page of the Will whereas Petitioner stated that the Will
consisted of only 2 pages and it has No. 3rd page. Respondent No. 2 has placed
on record photocopy of that alleged 3rd page but even if this photocopy is seen
and compared with original Will, then prima facie it can be said that it was not
a part of the original Will the alleged 3rd page appears to be some another
document and prima facie it is not certainly 3rd page of the Will. Otherwise
alleged 3rd page of the Will cannot be relied upon because in the cross
examination of PW-1 Respondent No. 2 has not referred about it anywhere or
confronted her with it though admittedly it was in her possession since
beginning.
13.3. The Respondents yet persisted with their assertion about existence of the third
page of Will in question and now, the Respondent No. 2 moved an application Under
Order XI Rule 12 and 14 Code of Civil Procedure seeking production of the same. This
application was also resisted by the Appellant while denying existence of any such third
page and even with the allegation that this third page had been fabricated by the
Respondents in connivance with each other. The Trial Court dealt with and rejected the
application so moved by the Respondent No. 2 (who was Respondent No. 3 in the Trial
Court) by way of its order dated 23.08.2008, inter alia, with the following observations:
Counsel for Respondent No. 3 during arguments read the cross examination of
the Petitioner as well as the contents of the alleged third page of the Will to
show that, that the movable properties was distributed by the deceased during
her life time in accordance with the contents of the third page of the Will so it
can be said that the Will in fact consisted of three pages and not two pages as
alleged by the Petitioner, however, I am not convinced with this submission.
In the cross examination of the Petitioner the alleged third page of the Will was
never put to confront her in order to substantiate the plea that the Will consists
of three pages. Even in the cross examination of PW-2 attesting witness of the
Will no suggestion was given that the Will was of three pages and not of two
pages. The Will Ex. PW-1/H is of two pages and even the handwritten
endorsement at the end of it point out that it consisted of only two pages. The
alleged third page of the Will, photocopy of which was placed on record by the

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 Respondent No. 2 does not bear any date or signatures of any attesting
witnesses. The alleged third page has already been found not a part of the Will
as per order dated 3-7-2008. The Respondent No. 3 in his objection has
described the entire Will as forged and fabricated but now cannot be allowed to
take a contradictory stand that the third page is genuine and other two pages
are forged on the ground that admittedly the movable property was distributed
in accordance with the alleged third page among the legal heirs. In this case,
the claim is made by the Petitioner in respect of one immovable property and
one bank account and no claim is made in respect of any movable property.
Even if it is presumed that deceased during her life time distributed her
personal belongings, cash and jewellery in accordance with the third page then
also that third page has now become useless because the distribution of the
movable assets took place during life time of the deceased whereas the Will has
to take effect after the death of the testatrix. Accordingly, in this case only
subject matter remains is immovable property and the bank account.
Petitioner has denied the existence of this alleged third page and also denied
having possession of the same. She has also denied supplying of the copies of
this alleged third page to the Respondents at the time of service of the petition.
The reply is supported by an affidavit of the Petitioner, so in such situation also
no direction can be given to the Petitioner to produce the original of alleged
third page of the Will which is being relied upon by the Respondent No. 3 now.
Petitioner infact is saying that this third page has been fabricated by the
Respondents in connivance with each other.
Accordingly, I find no merits in the application of Respondent No. 3 especially
when in the cross examination of PW-1 and PW-2 no such third page was put
for confrontation and relying upon this alleged third page now is contradictory
from the contents of the objections filed to the petition. Application is thus,
dismissed with cost of Rs. 1000/- to be paid to the Petitioner.
14. Hereinabove, we have expansively recounted the part of the proceedings in the Trial
Court concerning the alleged third page of the Will. As could be readily noticed, while
the contesting Respondents, one way or the other, kept on insisting that there had been
a third page of the Will but, per contra, existence of any such third page of the Will in
question was categorically denied by the Appellant; rather the Appellant alleged that the
said third page had been fabricated by the Respondents in connivance with each other.
The Trial Court also accepted the submission of the Appellant that no such third page
existed, particularly after noticing that the Appellant was never confronted with any
such third page of the Will. The Trial Court even observed that distribution of movable
assets of testatrix was complete during her lifetime and the only subject-matter
remaining was the immovable property and the bank account. The relevance of these
aspects shall appear in the later part of this judgment, when we shall be dealing with
the effect of a different stand taken by Appellant in the High Court.
FINDINGS OF THE TRIAL COURT
15. Having glanced through the pleadings and evidence of the parties, having taken
note of the contents and frame of the Will in question, and having also taken note of the
relevant parts of proceedings before the Trial Court, we may look at the findings of the
Trial Court in its judgment dated 23.11.2009, particularly the reasons that weighed with
it while declining the prayer for probate of the Will in question.

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15.1. As regards the objection of Respondent No. 2 that the property in question was
an ancestral property, the Trial Court referred to the decision of this Court in
Chiranjilal Shrilal Goanka v. Jasjit Singh MANU/SC/0496/1993 : (1993) 2 SCC 507
and held that the said objection would not be entertained because the 'question of right,
title, share and ownership is not to be decided in the probate proceedings'. The Trial
Court also found that the testatrix was of sound mind at the time of execution of the
Will, particularly when she was handling her own affairs including bank account and
property; was leading a very active life till her death; and was also attending club and
driving her own car.
15.2. However, thereafter, the Trial Court took into account various circumstances
which appeared to be suspicious. In the first place, the Trial Court referred to the
decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma MANU/SC/0115/1958
: AIR 1959 SC 443, Indu Bala Bose v. Manindra Chandra Bose
MANU/SC/0386/1981 : (1982) 1 SCC 20 andSurendra Pal v. Dr. Saraswati Arora
MANU/SC/0289/1974 : (1974) 2 SCC 600 and observed that if propounder of the Will
takes an active part in the execution of the Will and receives substantial benefit under
it, then such a circumstance is generally treated as suspicious one. As regards the facts
of the case at hand, the Trial Court found that the Appellant played an active role in
execution of the Will in question and at the same time, she was the major beneficiary
thereunder where she was not only given the first floor but also the terrace rights and
all other portions of the property in question.
15.3. Secondly, the Trial Court was of the view that the exclusion of the only son from
the immovable property was also a suspicious circumstance. The Court took into
consideration the birthday card Ex. RW3/1 sent by the testatrix to Respondent No. 2 and
was of the view that the words of praise in the said card belied the suggestion that the
relationship between them was strained. The Trial Court also took into consideration the
family photographs making out that the testatrix was present at the second marriage of
Respondent No. 2 and observed that the said photographs were not challenged or
questioned by the Appellant. The Trial Court also observed that the testatrix would not
have given him the amount in the bank account if their relations were strained.
15.4. Thirdly, the Trial Court also found that the other daughter of the testatrix (the
Respondent No. 1 herein) virtually did not get any substantial share. The Trial Court
was of the view that the exclusion of Respondent No. 1 from the Will, when there was
no proof of strained relationship of testatrix with her, made the Will unnatural and
unfair; and this was another strong suspicious circumstance to reject the Will.
15.5. Fourthly, the Trial Court did not feel satisfied about the manner of writing and
execution of the Will and observed that the testatrix had not completed her education
and was not a computer literate; that a few portions of the Will were handwritten and
there were traces of pencil lines beneath the handwritten portions, making out that the
testatrix was asked to write as per dictation on the particular portion; and that certain
portions of the Will contained technical and legal words not known to a layperson. The
Trial Court observed that the relevant facts as to how the Will was typed and how the
testatrix was made to write the particular Clause in the Will in her own handwriting
were not clarified and the manner of execution of Will was another suspicious
circumstance.
15.6. Fifthly, the Trial Court was of the view that the attesting witnesses were
unreliable and the possibility of PW-3 being bribed was not ruled out as the Appellant
had given an amount of Rs. 25,000/- to his daughter. On the other hand, PW-2

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admitted in his cross-examination that he hardly knew the testatrix.
15.7. Sixthly, the Trial Court also took into consideration the contradictions in the
statements of the witnesses, which raised doubts as to the genuineness to the story of
the Appellant. The Trial Court pointed out that as per the Appellant, she had no
knowledge of the execution of the Will prior to 20.05.2003 but as per the testimony of
PW-2, it was the Appellant who called him on 18.05.2003 for the purpose of attestation
of the Will.
15.8. Seventhly, the Trial Court also observed that there were vague recitals in the Will
such as, 'other portions of the building', when the said property consisted only of the
ground floor and first floor.
16. While elaborately dealing with all the suspicious circumstances concerning the Will
and unreliability of the evidence led by the Appellant, the Trial Court found that the
Appellant had not been able to remove the suspicions and hence, dismissed the
petition.
CONCURRENCE OF THE HIGH COURT
17. Being aggrieved by the said judgment of the Trial Court, the Appellant approached
the High Court in FAO No. 36 of 2010 that has been considered and dismissed by the
impugned judgment dated 27.06.2014. Having regard to the questions involved, we
may notice the reasons that prevailed with the High Court in upholding the decision of
the Trial Court in requisite details.
17.1. In the impugned judgment dated 27.06.2014, the High Court in the first place
took note of the relevant material on record; the suspicious circumstances surrounding
the Will in question as indicated by the Trial Court; and the contentions of respective
parties. Thereafter, the High Court referred to the basic ingredients for due execution of
a Will as per Section 63 of the Succession Act and Section 68 of the Indian Evidence
Act, 18726 and the principles exposited by this Court in the cases of H. Venkatachala
Iyengar v. B.N. Thimmajamma (supra); Rani Purnima Debi v. Kumar Khagendra
Narayan Deb MANU/SC/0020/1961 : (1962) 3 SCR 195,Smt. Jaswant Kaur v. Smt.
Amrit Kaur and Ors. MANU/SC/0530/1976 : (1977) 1 SCC 369;Babu Singh and
Ors. v. Ram Sahai @ Ram Singh MANU/SC/2456/2008 : AIR 2008 SC 2485;Gurdial
Kaur and Ors. v. Kartar Kaur and Ors. MANU/SC/0271/1998 : 1998 SCR (2) 486;
P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.
MANU/SC/0354/1995 : AIR 1995 SC 1852,Benga Behera and Anr. v. Braja Kisore
Nanda and Ors. MANU/SC/7673/2007 : (2007) 9 SCC 728 andB. Venkatamuni v.
C.J. Ayodhya Ram Singh and Ors. MANU/SC/4692/2006 : (2006) 13 SCC 449 as also
in a Division Bench decision of Madras High Court in J. Mathew and Ors. v. Leela
Joseph MANU/TN/1475/2007 : (2007) 5 ML J 740 and observed that as per settled law,
mere proof of signatures on the Will was not sufficient to prove its due execution; and
it was the duty of the party seeking probate to satisfy the conscience of the Court as
regards due execution of the Will by the testator and for that matter, the Court can
probe deeper into the matter to satisfy its conscience that the testator/testatrix had duly
executed the Will after understanding its contents. The High Court, thus formulated the
point for consideration as under:
28. The question for consideration is whether the evidence led by the Appellant
i.e., propounder satisfies the conscience of the court that the Will in question
was duly executed.

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17.2. Thereafter, the High Court took up the crucial finding of the Trial Court that the
evidence on record did not establish that while signing the Will Ex. PW1/H, the testatrix
understood the contents thereof.
17.2.1. In regard to this fundamental aspect as to whether the testatrix understood the
contents of the document Ex. PW1/H, the High Court meticulously examined the
material on record and observed that the Appellant, in her evidence, did not mention
that the testatrix was aware of the contents of the Will. The High Court further referred
to the testimony of the Appellant to the effect that she was not made aware by the
testatrix as to who had drawn and typed the Will in question; that she was made aware
about the Will only on the day of its execution; that she was not aware if testatrix had
discussed the Will with Respondent Nos. 1 and 2; that she was not directed by the
testatrix to call Respondent Nos. 1 and 2 on the day of execution of the Will; and that
though she remembered the testatrix writing something, but she was unsure whether it
was on the document of Will. A major discrepancy was observed by the High Court in
her deposition with regard to the attesting witnesses where the Appellant stated that the
testatrix had discussed the contents of the Will with PW-2 and PW-3 while those
witnesses denied the same in their evidence. Thus, after having thoroughly examined
the testimony of the Appellant, the High Court concluded that nothing was brought on
record to show that the testatrix was aware of the contents of the Will. The High Court
said,-
3 0 . The evidence on record in this regard is examined. The Appellant has
nowhere stated in her evidence by way of affidavit Ex. P1 that testatrix was
aware of the contents of the Will Ex. PW1/H. In her cross-examination, she has
stated that her mother i.e. testatrix did not discuss the contents of the Will Ex.
PW1/H with her before drawing it nor her mother told her as to who had drawn
and typed the said Will. The Appellant has further stated in cross-examination
that she does not know when Will Ex. PW1/H was got typed. She has further
stated that she had come to know about the said Will Ex. PW1/H only on 20-21
May, 2003. The Appellant has also deposed that she does not know whether her
mother i.e., testatrix had discussed the Will Ex. PW 1/H with Respondent No. 2
or Respondent No. 3. Her mother did not ask her to call Respondent Nos. 2 and
3 on that day. In cross-examination, she has further stated that her mother had
discussed the contents of the Will with the witnesses i.e. PW2 and PW3 whereas
PW2 and PW3 in their evidence have denied the same. The Appellant has further
deposed that she does not know if any professional or any deed writer was
engaged for drafting/typing of the Will Ex. PW 1/H. The Appellant has also
deposed that on that day her mother had written something but she does not
know whether it was on the Will or something else. From her evidence, it
cannot be said that testatrix was aware about the contents of the Will Ex.
PW1/H.
17.2.2. The High Court also examined the evidence of attesting witnesses PW-2 Shri
Urvinder S. Kohli and PW-3 Major General Manjit Ahluwalia, who deposed that the
testatrix did not discuss the contents of the Will with them nor did they question her
about the same; and that after they had arrived at the residence of testatrix, she went
ahead to write something more on the Will before signing it. The High Court observed
that from their testimonies too, nothing was proved if the testatrix understood the
contents of the document in question and said,-
33. Even from the evidence of attesting witnesses i.e. PW2 and PW3 it can't be
said that testatrix had put her signatures on the Will Ex. PW1/H after

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 understanding its contents or that while signing she was aware of its contents.
17.2.3. Proceeding further, the High Court also took note of the statement of the
Respondent No. 1 that the testatrix was not even 10th pass; and also referred to the
statement of the Appellant that she was not aware of the educational qualification of her
mother but her mother could read and write in the English language. The High Court
referred to the fact that the testatrix was not computer literate and had no legal
knowledge; and the language used in the Will showed that the same was drafted by a
lawyer. The High Court observed that no evidence was led in as to who drafted and
typed the Will Ex. PW1/H and considered the same to be a suspicious circumstance with
reference to the decision of this Court in Smt. Jaswant Kaur (supra). The High Court
also took into account the feature that the document in question was partly typed and
partly handwritten with no plausible explanation for the same and found that the
document was not prepared in one sitting. Thus, after thorough analysis, the High Court
concluded that from the evidence led in by the Appellant, it cannot be said that the
testatrix had understood the typed portion or that the same was read over to her before
she put her signatures on the Will. Accordingly, the High Court affirmed the findings of
the Trial Court in regard to such a suspicious circumstance while observing and finding
as under:
35. ...The Will Ex. PW1/H is partly typed and partly hand written i.e. opening
and closing para of the Will Ex. PW1/H. The evidence shows that the Will Ex.
PW1/H was also not prepared in one sitting. The first and last para of Will Ex.
PW1/H is in the handwriting of testatrix. The rest of the Will Ex. PW1/H is typed
one. No explanation has been given in evidence as to why the Will is partly
handwritten and partly typed. During arguments, learned Counsel for Appellant
has submitted that first and last para are handwritten so as to give more
weightage to the Will in question. However, the reasoning given is not
understandable. Further, no evidence is led by the Appellant to show from
where the Will in question was got typed. The first para of Will in question
gives the name and other details of testatrix and last para is the closing para of
the Will in question. The typed portion gives the details of alleged bequeath in
the Will Ex. PW1/H whereby major portion has been given to the Appellant and
one floor as per choice of the Appellant is alleged to have been bequeathed in
favour of Respondent No. 2. Reading the evidence led by the Appellant it can't
be said that the testatrix had understood the typed portion or same was read
over to her before she had put her signatures on the Will Ex. PW1/H. The
learned ADJ has rightly held the above as the suspicious circumstance.....
17.3. The High Court thereafter examined the bequeathing contents of the Will in
question and observed that nothing was available in the petition or evidence of the
Appellant as to why the major portion of immovable property was given to her though
she was not staying with the testatrix for about 20-22 years and it was not her case that
she was looking after the testatrix who was a cancer patient. On the other side of the
picture, the High Court noticed that the widowed daughter of the testatrix (Respondent
No. 1 herein) was, at the relevant time, living on the first floor of the house where
testatrix was residing; and, as per the evidence on record, Respondent No. 1 was
looking after her mother and was taking her to Army Hospital. Having thus taken note of
the overall scenario and setup, the High Court found it rather inexplicable that the
Respondent No. 1 was left at the mercy of the Appellant; that in the Will in question, no
time limit was provided as to when the Appellant would construct the floors and about
the nature and quality of the construction; and that Respondent No. 1 shall have to be
dispossessed for the purpose of the expected construction.

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17.4. The High Court also dealt with another major factor pertaining to this case that
the Appellant, the major beneficiary, indeed played an active role in execution of the
Will in question; and noticed material contradictions in the testimonies of Appellant and
her witness PW-2. The High Court found that the Appellant was unable to satisfy the
conscience of the Court in regard to such suspicious circumstance in the following
passages:
4 0 . Reading the Will in question, it is the Appellant who is the major
beneficiary of the Will. The evidence on record shows that she has also played
an active role in the preparation of the alleged Will. She was present when the
Will in question was allegedly executed. The attesting witness Urvinder S Kohli,
PW-2 is very well known to the Appellant being her friend for the past 30 years.
He has deposed that he had known deceased through Appellant and later the
Appellant's cousin's son got married to his daughter in the year 1994 and since
1994 he had visited testatrix only twice or thrice on social occasions. Reading
his evidence it can't be said that he was close to the testatrix. In these
circumstances, testatrix could not have called him of her own for attesting the
Will Ex. PW1/H. Though in the evidence, Appellant has deposed that her mother
i.e., testatrix had called the said witnesses whereas the witness PW2 has
deposed that on 18.5.2003, he was called by the Appellant who told him to
come to her mother's house on 20.5.2003 as her mother wanted to executed
the Will.
41. The evidence on record shows that Appellant has taken a prominent part in
execution of Will Ex. PW1/H which confers on her a substantial benefit worth
crores of rupees. This itself is a big suspicious circumstance as has been held
by Supreme Court in Niranjan Umesh Chandra Joshi v. Mridula Jyoti Rao
MANU/SC/8788/2006 : 2007 (1) AD SC 477. It has also been held by Supreme
Court in Surinder Pal v. Saraswati Arora MANU/SC/0289/1974 : (1974) 2 SCC
600 that where propounder takes prominent part in the execution of Will which
confers on him a substantial benefit that is itself one of the suspicious
circumstance which he must remove by clear evidence. In the present case no
evidence is led by Appellant to satisfy the conscience of the court to clear the
aforesaid suspicious circumstance existing at the time of making of Will Ex.
PW1/H. The propounder was required to remove the doubts by clear and
satisfactory evidence.
17.5. Turning on to the Respondent No. 2 (son of the testatrix), the High Court found
that absolutely no reason was provided in the Will for excluding him from the said
immovable property and for limiting his benefit under the Will to the balance amount in
the savings bank account of the testatrix. The High Court observed that though the
Appellant had deposed that there were strained relations between the testatrix and
Respondent No. 2 but, on the contrary, the witness PW-3 Major General Manjit
Ahluwalia, son of sister of the testatrix, as also Respondent No. 1 had deposed that
their relations, in fact, were satisfactory. The High Court again referred to the
documentary evidence as regards regular maintaining of good relations between the
testatrix and her son, like those of birthday card and the family photographs, and
observed that if at all there were strained relations, the testatrix would not have even
bequeathed any amount to her son. Again, after a thorough analysis of the evidence on
record, the High Court found that there was no sufficient evidence of strained relations
between the testatrix and her son to such an extent that she would have excluded him
from her immovable property. Hence, the exclusion of Respondent No. 2 from bequeath
was also taken to be that of a grave suspicious circumstance casting doubt on the

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genuineness of the Will in question. The High Court, inter alia, observed,-
46. There is no evidence coming forth to explain the suspicious circumstance of
excluding Respondent No. 3 from bequeath of the immovable property. As
noted above, there is no evidence that deceased had understood the contents of
the Will Ex. PW1/H before signing it. In this background, exclusion of
Respondent No. 3 is also a grave suspicious circumstance which has also
remained unexplained. The same cast doubt as to the genuineness of Will Ex.
PW1/H.
17.6. Yet further, the High Court also noticed that though Respondent No. 1 resided
only one floor above the testatrix and was also maintaining good relations with her, but
only the Appellant was called at the time of execution of the Will and no reason was
provided for not calling the Respondent No. 1. That apart, the High Court also took note
of the fact that Respondent No. 1 was made aware of the execution of the Will only after
three years from the date of its execution. The execution of the Will in secrecy, without
informing the other legal heirs, and without affording explanation for such an act, was
also considered as another unexplained suspicious circumstance.
17.7. The High Court also referred to various contradictions in the testimonies of the
Appellant and the said two attesting witnesses on the material aspects concerning the
execution of Will by testatrix, particularly as to how the handwritten portion was scribed
on the document and as regards discussion concerning the contents of the document;
and found such contradictions to be serious in nature, creating doubt about the
execution of Will Ex. PW1/H in accordance with law. After examining the relevant parts
of evidence, the High Court observed and found as under:
4 8 . Further, there are serious contradictions in the testimony of attesting
witnesses i.e. PW2 and PW3 and that of Appellant on material aspects
pertaining to the execution of the Will. In affidavit Ex. P1 the Appellant has
stated that the testatrix had brought out a partly typed Will and further wrote in
her own hand the opening and closing paragraphs of the Will Ex. PW1/H. In
cross-examination, she has stated that she does not know whether she had
written on the Will or something else. Sh. Urvinder S. Kohli PW2 has stated that
the handwritten portion on the Will Ex. PW1/H was written by the testatrix of
her own. Sh. Manjit Ahluwalia PW3 has stated in cross-examination that the
testatrix was having one draft out of which she copied something in her own
handwriting on Will Ex. PW1/H. All the three witnesses have deposed differently
as to how handwritten portion was written on Will Ex. PW1/H. There is also
contradiction as regards discussion about the contents of Will Ex. PW1/H by
testatrix with the attesting witnesses. The Appellant has stated in her cross-
examination that her mother had discussed the contents of Will with the
witnesses whereas both the attesting witnesses have denied that the contents of
Will were discussed by the testatrix. PW2 has also stated in the cross-
examination that he even did not question the testatrix on the same. There is
also contradiction about the manner of taking out of Will at the time the
witnesses had reached the house of testatrix. The attesting witness PW2 has
deposed that the Will was not produced before him when he was present with
the testatrix and Appellant. According to him, when PW3 had come, only then
the Will was produced. On the other hand, Sh. Manjit Ahluwalia PW3 has
deposed that when he had reached the house of testatrix Will Ex. PW1/H had
already been taken out by the testatrix before he reached her house. The above
contradictions are serious in nature and create a doubt about the execution of

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 Will Ex. PW1/H in accordance with law.
17.8. Taking into comprehension the aforesaid observations and findings, it is apparent
that the High Court, after an independent analysis of the evidence on record, concurred
with the major findings of the Trial Court as regards various suspicious circumstances
which remained unexplained and which operated against genuineness of the document
propounded as Will of the mother of the parties. However, that was not the end of the
matter because another doubtful factor was also analysed by the High Court as regards
payment of a sum of Rs. 25,000/- by the Appellant to the daughter of the attesting
witness PW-3 Major General Manjit Ahluwalia, through cheque from an account jointly
maintained in the name of testatrix and the Appellant but, after the death of the
testatrix. The contesting Respondents claimed that the aforesaid payment was made in
order to garner favour from the attesting witness PW-3. In this regard, the stand of the
Appellant had been that such an amount was paid not only to the daughter of PW-3 but
also to the daughter of Respondent No. 1 and to the sons of Appellant as the testatrix
wanted to gift the said amount to them. Interestingly, in order to buttress this stand of
the Appellant that the amount was paid to the daughter of PW-3 as per the wishes of
testatrix, the learned Counsel for the Appellant before the High Court referred to the
alleged third page of the Will. After noticing such a submission made on behalf of the
Appellant with reliance on the alleged third page of the Will, the High Court referred to
the very same proceedings of the Trial Court which we have referred in detail
hereinbefore, where the Respondents wanted to produce the alleged third page of the
Will but the Appellant denied the very existence of any such third page of the Will in
question. The High Court found that the said third page of the Will was never produced
before the Trial Court; and observed that even if existing, the alleged third page of the
Will does not dispel the suspicious circumstances. This part of the discussion and
observations of the High Court, in paragraph 49 of the impugned judgment, could be
usefully extracted as under:
4 9 . It has also come in the evidence that Rs. 25000/- was paid by the
Appellant to the daughter of the attesting witness Major General Manjit
Ahluwalia PW3 through cheque Ex. R3W1-C from account jointly in the name of
testatrix and the Appellant after the death of testatrix. The stand of Respondent
No. 2 and 3 is that the aforesaid payment was made in order to get favour from
the attesting witness PW3 as such his evidence is not reliable. On the other
hand, the stand of the Appellant is that the said amount was not only paid to
the daughter of PW3 but was also paid to the daughter of Respondent No. 2 and
to the son of Appellant as the deceased/testatrix wanted to gift the said amount
to them. In support of the stand, learned Counsel for Appellant has referred to
the alleged third stage of Will in question. It may be mentioned that the alleged
third page of the Will Ex. PW1/H is never produced by the Appellant. Rather,
when the Respondent No. 3 had moved an application for production of the
alleged third page of the Will, Appellant had denied the existence of said page.
The third page of the Will is never proved before the learned ADJ. Even
assuming the alleged third page exists, the same does not dispel the suspicious
circumstances as have been noted above. In these circumstances, the
contention of the Appellant that the alleged third page of Will Ex. PW1/H proves
its validity has no force.
17.9. After taking note of the aforesaid inexplicable features, unusual circumstances
and unreliability of the witnesses, and finding no fault or malafide in the Respondent
No. 1 contesting the matter at the later stage, the High Court in its impugned judgment
dated 27.06.2014, while concurring with the findings of the Trial Court, dismissed the

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appeal and held that mere signature on the Will by the testatrix was not sufficient to
prove that the said Will was duly executed after understanding the contents thereof. The
High Court concluded on the matter as follows:
5 1 . In view of above discussion, the findings of learned ADJ that Will Ex.
PW1/H is surrounded by various suspicious circumstances which has remained
unexplained and the possibility of aforesaid Will not duly executed by the
deceased after understanding its contents are confirmed. No illegality or
perversity is seen in the findings given by the learned ADJ. No case is made out
for interference with the impugned judgment.
RIVAL CONTENTIONS
The Appellant
1 8 . Being aggrieved by the judgment so passed by the High Court dismissing her
appeal and maintaining rejection of her prayer for grant of probate, the Petitioner-
Appellant has preferred this appeal by special leave. Assailing the impugned judgments,
learned Counsel for the Appellant has strenuously contended that due execution of the
Will as per the requirements of the Succession Act having been proved in accordance
with procedure prescribed by the Evidence Act; and no cogent reason or circumstance
having been established on record against the genuineness of the contested Will, a clear
case for grant of probate is made out but the Trial Court as also the High Court have
proceeded to reject the prayer of the Appellant on entirely baseless considerations while
doubting the Will on the so-called suspicious circumstances, though there is none.
18.1. Elaborating on her submissions, the learned Counsel for the Appellant has
submitted that a Will has to be proved like any other document but, it has to satisfy the
requirements of Section 63 of the Succession Act in the manner that for due execution,
the testator has to sign or affix his mark on the Will or it has to be signed by some
other person in the presence of testator and under his direction; and the Will has to be
attested by two or more witnesses, each of whom has seen such signing or affixation by
testator or by other person acting as per the directions of the testator. Further to that,
as per Section 68 of the Evidence Act, at least one attesting witness has to be examined
in proof of a Will. The learned Counsel would submit that in the present case, all the
requirements of Section 63 of the Succession Act are duly satisfied in the execution of
the Will in question; and the same has been duly proved with examination of both the
attesting witnesses before the Court as PW-2 and PW-3. The learned Counsel has
contended that the Appellant having duly discharged her burden and nothing concrete
having been brought on record so as to create any legitimate suspicion, there is no
reason to deny probate as prayed for.
18.2. While asserting the case of the Appellant for grant of probate in relation to the
Will in question, the learned Counsel has, in the first place, questioned the standing and
stance of the Respondents in attempting to raise certain issues about the Will in
question.
18.2.1. As regards Respondent No. 1, learned Counsel for the Appellant has contended
that she has no locus either to lead evidence or to doubt the validity and genuineness of
the Will for the reason that she did not file any objections before the Trial Court and as
such, inevitably, had accepted the execution of the Will in question as being the last
testament of her mother. The learned Counsel would submit that the applications filed
by Respondent No. 1, for recall of the Appellant for the purpose of further cross-
examination and for permission to file written statement were rejected by the Trial

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Court and she did not challenge the orders so passed against her and thereby, such
orders have attained finality. The learned Counsel has submitted, with reference to
Section 268 of Succession Act with Order VIII Rule 10 of Code of Civil Procedure as also
Order XIV Rule 1(6) read with Order XV Rule 2 Code of Civil Procedure, that the status
of Respondent No. 1 remains to be that of a Defendant who is not at issue with the
Plaintiff; and in the given circumstances, all the suggestions sought to be made on her
behalf deserve no consideration. With reference to the decision in Bachhaj Nahar v.
Nilima Mandal and Anr. MANU/SC/8199/2008 : (2008) 17 SCC 491, the learned
Counsel has submitted that evidence led in without pleadings by the Respondent No. 1
remains inadmissible. The learned Counsel has also submitted that it is for the first time
before this Court that a new plea of fact was introduced by the Respondent No. 1 in the
written submissions as regards the status of relationship between the Respondent No. 1
and her mother; and that the provisions Under Order VI Rule 7 of Code of Civil
Procedure prevent introduction of new grounds of claim except by way of amendment.
The learned Counsel has emphatically argued that from the very beginning, the premise
of Respondent No. 1 had been that she admitted the genuineness of the Will and
therefore, a stand contrary to the same cannot now be raised by her before this Court.
18.2.2. As regards Respondent No. 2, learned Counsel for the Appellant has referred to
the objections filed by him and has submitted that most of the objections being totally
baseless and untenable, were clearly rejected by the Trial Court like those suggested as
if the Will in question was forged and fabricated or those seeking to question the
disposing state of mind of the testatrix. The learned Counsel has also submitted that the
Respondent No. 2 went on to suggest ancestral character of the property in question
and the Trial Court has rightly rejected such objections too with reference to the
decision in Chiranjilal (supra) because title of the property is not to be decided in
probate proceeding. The learned Counsel has further submitted that the suggestions by
this Respondent about his cordial relations with the testatrix have not been established
on record and a few photographs and letters produced by him do not establish that he
was in thick of relations with the testatrix; rather, as per the evidence on record, he
remained away and detached from the family and he was not even aware about the
ailment of the testatrix. Thus, according to the learned Counsel, even the objections of
Respondent do not make out a case of any such suspicious circumstance for which the
genuineness of the Will in question may be doubted.
18.3. As regards the testimonies of the two attesting witnesses, the learned Counsel
would submit that they have clearly proved the material facts relating to due execution
of Will and attestation by them; and the doubts sought to be thrown upon them with
reference to some minor and natural discrepancies, or their acquaintance with the
Appellant are of no consequence. The learned Counsel has contended that the Will was
executed in the year 2003 while the testimonies of the witnesses were recorded only in
the year 2008 and therefore, minor variations on details as to who arrived first or what
portion was written on the Will etc., do not affect the substance of their evidence.
18.4. The learned Counsel has referred to various decisions like those in H.
Venkatachala Iyengar (supra), Madhukar D. Shende v. Tarabai Aba Shedage
MANU/SC/0016/2002 : (2002) 2 SCC 85; andJoyce Primrose Prestor v. Vera Marie
Vas MANU/SC/1538/1996 : (1996) 9 SCC 324 to submit that though the initial onus to
prove the Will is on the propounder but once that burden is discharged, any suspicion
alone cannot form the foundation of judicial verdict; and any suggestion about
suspicion ought to be examined by the Court while guarding against conjectures and
mere fantasy of a doubting mind. The learned Counsel has iterated the principles in the
decisions aforesaid that there ought to be real, germane and valid suspicious features

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for which the propounded Will may be called in question, but there had been no such
feature or circumstance in the present case.
18.5. As regards the manner of execution of the Will in question, the learned Counsel
has submitted that the ratio of Joyce Primrose Prestor (supra), that greater degree of
presumption arises in the case of a "holograph" Will, is applicable to the present case
too, where the significant contents relating to the particulars of the testatrix and her
unequivocal bequeath, in the opening and concluding passages, were duly written in her
own hand by the testatrix.
18.6. While dealing with the suspicious circumstances taken into consideration by the
Trial Court and the High Court, the learned Counsel has submitted that the alleged
circumstances were either non-existent, or were not pleaded, or were not of any
suspicion at all.
18.6.1. The learned Counsel would submit that the circumstances like the Appellant
being the major beneficiary; she playing an active role in execution of the Will;
exclusion of son from the benefit of estate; the other daughter virtually not getting any
share; and the manner of writing of the Will were neither specifically pleaded nor they
operate against the genuineness of the Will in question. Further, according to the
learned Counsel, the circumstances like non-information of execution of Will to the legal
heirs; vague contents of Will; and contradictions in the statements of witnesses are, on
the face of it, imaginary and conjectural and could only be ignored.
18.6.2. The learned Counsel has contended, with reference to the decisions in Leela
Rajagopal and Ors. v. Kamala Menon Cocharan and Ors. MANU/SC/0783/2014 :
(2014) 15 SCC 570, Ved Mitra Verma v. Dharam Deo Verma MANU/SC/0709/2014 :
(2014) 15 SCC 578; Mahesh Kumar v. Vinod Kumar and Ors. MANU/SC/0208/2012
: (2012) 4 SCC 387; Savithri and Ors. v. Karthyayani Amma and Ors.
MANU/SC/8061/2007 : (2007) 11 SCC 621;Pentakota Satyanarayana and Ors. v.
Pentakota Seetharatnam and Ors. MANU/SC/0819/2005 : (2005) 8 SCC 67;Uma
Devi Nambiar and Ors. v. T.C. Sidhan MANU/SC/1026/2003 : (2004) 2 SCC 321;
Ramabai Padmakar Patil and Ors. v. Rukminibai Vishnu Vekhande and Ors.
MANU/SC/0583/2003 : (2003) 8 SCC 537 and Rabindra Nath Mukherjee and Anr. v.
Panchanan Banerjee and Ors. MANU/SC/0322/1995 : (1995) 4 SCC 459, that mere
presence of the propounder/beneficiary of a Will at the time of its execution; or
exclusion of the natural heirs from any benefit; or acquaintance of the propounder with
any witness are not of such suspicious circumstances as to create legitimate doubts on
the genuineness of the Will.
18.6.3. As regards the question of monetary benefits to the attesting witnesses, it is
maintained on behalf of the Appellant that there had not been any monetary benefit to
PW-2; and monetary benefit to the daughter of PW-3 has to be seen in the background
that the said witness is a Major General and was closely related to the testatrix; there is
no allegation as to the credibility of the said witness; and the frivolous doubt is being
raised on his credibility only where an amount of Rs. 25,000/- 'out of love and
affection' has been given in the year 2006.
18.7. Thus, it is submitted that the Will in question is the genuine last Will of the
mother of parties; and the Appellant being the executor, may be granted probate as
prayed for.
The Respondent No. 2

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19. While countering the submissions made on behalf of the Appellant, learned Counsel
for the Respondent No. 2, son of testatrix who had filed the objections and has
consistently contested the matter, has recounted the suspicious circumstances taken
into account by the Trial Court and the High Court and has contended that the Appellant
has utterly failed to explain any of them and hence, the Will in question cannot be said
to have been made by the testatrix after understanding the meaning and purport of its
contents.
19.1. In the forefront of arguments, learned Counsel for the Respondent No. 2 has
submitted that the Appellant, who is admittedly the major beneficiary of the disputed
bequest, indeed played a prominent role in execution of the Will in question and then,
tried to deliberately conceal this fact of her active role in making of the document. The
learned Counsel has elaborated on these submissions with reference to the pleadings
and averments of the Appellant at various stages of proceedings where she consistently
maintained that she 'had role in the making and execution' of the Will in question. The
learned Counsel has also referred to the statement of the Appellant in the cross-
examination to the effect that the testatrix did not ask her to find witnesses to the Will
and that she might have called the witnesses to the Will on her own. These assertions
of the Appellant, according to the learned Counsel, are effectively contradicted by PW-2
Urvinder S Kohli, who maintained that it was the Appellant who, on 18.05.2003, asked
him to come to the testatrix's house and thereupon he agreed to come on 20.05.2003.
With reference to the decision in H. Ventakachala Iyengar (supra), the learned
Counsel has argued that when the propounder plays an active role in execution of Will
and gets major benefit thereunder, that itself is a suspicious circumstance and the
propounder must remove the suspicion by clear and satisfactory evidence, which the
Appellant has failed to adduce.
19.2. Further, the learned Counsel for the Respondent No. 2 has referred to the other
parts of the testimony of PW-2 Urvinder S Kohli to submit that this witness was barely
known to the testatrix whereas he was close to the Appellant for about 30 years. With
reference to the decision of this Court in Ramchandra Rambux v. Champabai and
Ors. MANU/SC/0304/1964 : AIR 1965 SC 354 and that of Delhi High Court inRajesh
Chand and Ors. v. Dayawati and Ors. MANU/DE/0359/1980 : ILR (1981) 2 Delhi
477, the learned Counsel has contended that closeness of attesting witness of the Will
with the propounder is itself a suspicious circumstance; and the Appellant has failed to
explain this circumstance either.
19.3. The learned Counsel for the Respondent has further made scathing remarks in
relation to the bequest as proposed in the Will in question and has submitted that
without any rhyme or reason, such unjust and unreasonable distribution of the assets of
the testatrix has been proposed which was not likely to be made by the mother of
parties, particularly when she had nothing against her son and against the other
daughter.
19.3.1. The learned Counsel would submit that in fact, the other daughter (Respondent
No. 1) of the testatrix was a widow with an unmarried daughter; and she had been
given the first floor of the house (which was the property of testatrix) for residence;
and she was taking care of testatrix, who was suffering from cancer. In the given
circumstances, there was no reason that testatrix would have left her widowed and
needy daughter at the mercy of the Appellant with vague and uncertain conditions of
raising upper story construction by the Appellant, as found in the Will in question. The
learned Counsel would also submit that the bequeath made by the testatrix could be
limited to her property alone and cannot include a property constructed by another

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person; that a property constructed using one's own money will be the exclusive
property of that person and as such, the conditional bequest made in the present case,
to appear as if the Respondent No. 1 was likely to get some property, had, in fact, been
sham and illusory. According to the learned Counsel, such wordings in the Will as also
the payments and handing over car to the daughter of Respondent No. 1 seems to have
precluded her from contesting the matter in the first place but that does not give any
weight or support to the Will in question.
19.3.2. While relying on the same decisions and with reference to the material on
record, the learned Counsel has submitted that Respondent No. 2, though having
remained away because of his enlistment in the Army, had always been in good terms
with his parents; and there was no reason that his mother, the testatrix, would have
given him only a pittance of amount in the bank while disinheriting him from the
immovable property.
19.3.3. The learned Counsel has relied on the decision in Rani Purnima Debi (supra)
and has also referred to the decision in Ram Piari v. Bhagwant and Ors.
MANU/SC/0306/1990 : AIR 1990 SC 1742 to submit that disinheritance among heirs of
equal degrees without providing any reason for exclusion of daughter also amounts to a
suspicious circumstance.
19.4. The learned Counsel has also questioned the manner of writing and executing the
document in question. The learned Counsel has referred to the inconsistencies in the
depositions of the witnesses in regard to the questions as whether the contents of the
Will in question were made known to the testatrix and whether the same were discussed
with the witnesses. The learned Counsel would submit that the testatrix was barely 10th
standard pass and was, obviously not conversant with such legal jargon as would
appear in the body of the Will in question. The Appellant has attempted to say that she
had no role in typing/scribing of the document and as per the witnesses, the contents
were not discussed with them. In such a scenario, there remains another unexplained
suspicious circumstance, as to who had drafted the Will in question and who prepared
the alleged note for the testatrix wherefrom, she was to write at the opening and
closing parts of the Will. The learned Counsel has submitted that when the main part of
the Will was typed, it is questionable why the inconsequential portion was handwritten;
and these lacunas in the evidence of the Appellant raises a possibility that the Will was
neither prepared nor understood by the testatrix. The learned Counsel has referred to
the decision in Krishan Dass Gupta v. The State & Ors. MANU/DE/0570/2012.
19.5. Another long deal of arguments by the learned Counsel for the Respondent No. 2
has been with reference to the alleged third page of the Will. The learned Counsel has
referred to the very same proceedings in the Trial Court which we have recounted
hereinbefore; and has submitted that in the Trial Court, Appellant consistently
maintained that there was no third page of the Will but when the issue of payment of a
sum of Rs. 25,000/- to the daughter of the attesting witness PW-3 cropped up before
the High Court, such a payment was sought to be justified with reference to the very
same third page of the Will in question. Such shifting stand of the Appellant, according
to the learned Counsel, gives rise to more suspicions; and it appears seriously
questionable if the Will in question was indeed the last Will of the testatrix and was
executed with the contents as desired by her.
The Respondent No. 1
2 0 . On the other flank of opposition, learned Counsel for Respondent No. 1 has

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maintained that this Respondent has all through disputed the very execution of the Will
by her mother; and the suspicious circumstances having not been removed, the prayer
for grant of probate has rightly been rejected.
20.1. In the first place, learned Counsel for Respondent No. 1 has vehemently
countered the submissions that this Respondent had accepted the claim of the Appellant
for probate of the Will in question and she is not entitled to make the submissions in
contest. The learned Counsel has referred to the facts that even if this Respondent did
not file her written statement, she indeed led evidence rebutting the case of the
Appellant and the Courts have returned concurrent findings that her contest was neither
an afterthought nor malafide. The learned Counsel has referred to the aforementioned
decisions in H. Venkatachala Iyengar, Rani Purnima Debi and Smt. Jaswant
Kaur to submit that Probate Court is a Court of conscience; and where the propounder
is to satisfy the conscience of the Court with removal of suspicious circumstances, the
Respondent No. 1, elder and widowed daughter of the testatrix, has every right to make
submissions to assist the Court in such an enquiry. Without prejudice, the learned
Counsel has further submitted that even in a civil case where right of filing written
statement is closed, the Defendant is not precluded from demonstrating that the
evidence led by the Plaintiff is not sufficient to make out a case for grant of relief as
prayed for. The learned Counsel has, inter alia, referred to Section 58 of the Evidence
Act; Order VIII Rule 5(2) and Order VIII Rule 10 Code of Civil Procedure and has relied
on the decision in Balraj Taneja and Anr. v. Sunil Madan and Anr.
MANU/SC/0551/1999 : (1999) 8 SCC 396. The learned Counsel has also pointed out
that Appellant never objected to the evidence of the Respondent No. 1 and while relying
on the decision in Modula India v. Kamakshya Singh Deo MANU/SC/0283/1988 :
(1988) 4 SCC 619, has contended that the submissions of Respondent No. 1 cannot be
discarded.
20.2. The learned Counsel has referred to the position of Respondent No. 1 and her
relationship with the testatrix with the submissions that Respondent No. 1 is the eldest
daughter of the testatrix, being 10 years older to the Appellant and three years older to
the Respondent No. 2; that the testatrix being aware of her adverse circumstances, had
given her the first floor of the property (which is the subject-matter of the present
proceeding); that the relationship between the testatrix and the Respondent No. 1 had
always been very good; that testatrix being a cancer patient, the Respondent No. 1 was
taking her for treatment to Army Hospital; that due to the physical proximity while
residing in the same building, the testatrix and the Respondent No. 1 had special bonds
between them. In the given setup, according to the learned Counsel, it seems quite
unnatural that the testatrix would leave the Respondent No. 1 at the mercy of Appellant
with such uncertain stipulations as contained in the contested Will.
20.3. Arguing further, the learned Counsel has contended that though the Appellant has
attempted to suggest that the Respondent No. 1 was excluded from the first floor of the
property in question but, there had not been any reason for such exclusion. The learned
Counsel has contended what has been created by the Will in question is only an illusory
and vague bequest in relation to the Respondent No. 1 for: a) the bequest to
Respondent No. 1 is of a floor above the first floor, which is not in existence; b) no
time frame is provided within which the Appellant may choose to execute either of the
two options and no corresponding option is provided to Respondent No. 1 meaning
thereby, that the bequest made by virtue of the Will in favour of Respondent No. 1 has
been indefinitely postponed; c) the entire property is vested in the Appellant
immediately upon the demise of the testatrix including the bequest made to Respondent
No. 1; and d) the nature and quality of the expected construction has not been

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specified. According to the learned Counsel, practically there is no effective bequest in
relation to the Respondent No. 1 and there is no reason for the testatrix adopting the
course as suggested.
20.4. The learned Counsel has relied on the decisions of this Court in B.
Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. MANU/SC/4692/2006 : (2006)
13 SCC 449; H. Ventakachala Iyengar; and Rani Purnima Debi (supra) amongst
others, to submit that the Probate Court can investigate into the matter of a Will despite
the fact that the signature found thereon has been proved or ingredients of Section 68
of the Evidence Act has been complied with. The learned Counsel has referred to the
definition of the expression "suspicion" in P. Ramanatha Aiyar's Advanced Law
Lexicon and has also relied upon the decision in Indu Bala (supra) to submit that
suspicion permits the Court to realistically imagine any doubtful or distrustful facet of a
case; and in testamentary jurisdiction, the Courts are permitted to ferret out doubtful
circumstances, which cannot be described as conjecture or surmise.
20.5. The learned Counsel has again recounted various circumstances, including
manner of making of the Will and contradictions/inconsistencies in the statements of
the witnesses examined by the Appellant, which have been taken into account in the
impugned judgments and have also been referred by the learned Counsel for the
Respondent No. 2; which need not be repeated. The learned Counsel has also placed
before us a flow chart reflecting thirteen aspects of findings, including those of
suspicious circumstances, which have been returned concurrently against the Appellant
and has contended that no case for interference with such concurrent findings is made
out. The counsel has additionally relied on the decision in Apoline D'Souza v. John
D'Souza MANU/SC/7718/2007 : AIR 2007 SC 2219.
20.6. In another line of arguments, learned Counsel for the Respondent No. 1 has
contended that the Will in question cannot have greater sanctity only because the
opening and closing parts are handwritten; rather it is strange that the testatrix chose
not to write the main bequest by hand and then, the handwritten portion of the Will in
question is placed in a squeezed manner and is not attested by any witness. The learned
Counsel would submit that such interlineations only go to show that additions have
been made in the Will subsequent to its execution and failure to assign the reason
behind such a course is fatal to the case put up by the propounder. The learned Counsel
has relied on the decision in Dayananadi v. Rukma D. Suvarna and Ors.
MANU/SC/1278/2011 : (2012) 1 SCC 510 in support of these contentions.
21. We have bestowed anxious consideration to the rival submissions with reference to
the law applicable and have also scanned through all the records pertaining to this case,
including the records of the Trial Court and the High Court.
WILL - PROOF AND SATISFACTION OF THE COURT
22. As noticed, the basic point for determination in this appeal is as to whether the
Trial Court and the High Court were justified in declining to grant probate in relation to
the Will dated 20.05.2003 as prayed for. Obviously, a just and proper determination of
this point would revolve around the legal principles applicable as also the relevant
factual aspects of the case. Before entering into the factual aspects and the questions in
controversy, appropriate it would be to take note of the applicable legal provisions and
principles concerning execution of a Will, its proof, and its acceptance by the Court.
23. It remains trite that a Will is the testamentary document that comes into operation
after the death of the testator. The peculiar nature of such a document has led to

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solemn provisions in the statutes for making of a Will and for its proof in a Court of
law. Section 59 of the Succession Act provides that every person of sound mind, not
being a minor, may dispose of his property by Will. A Will or any portion thereof, the
making of which has been caused by fraud or coercion or by any such importunity that
has taken away the free agency of the testator, is declared to be void Under Section 61
of the Succession Act; and further, Section 62 of the Succession Act enables the maker
of a Will to make or alter the same at any time when he is competent to dispose of his
property by Will. Chapter III of Part IV of the Succession Act makes the provision for
execution of unprivileged Wills (as distinguished from privileged Wills provided for in
Chapter IV) with which we are not concerned in this case.
23.1. Sections 61 and 63 of the Succession Act, relevant for the present purpose, could
be usefully extracted as under:
61. Will obtained by fraud, coercion or importunity.- A Will or any part of
a Will, the making of which has been caused by fraud or coercion, or by such
importunity as takes away the free agency of the testator, is void.
*** *** ***
63. Execution of unprivileged Wills.-Every testator, not being a soldier
employed in an expedition or engaged in actual warfare, or an airman so
employed or engaged, or a mariner at sea, shall execute his Will according to
the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall
be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person
signing for him, shall be so placed that it shall appear that it was
intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witness, each of whom
has seen the testator sign or affix his mark to the Will or has seen
some other person sign the Will, in the presence and by the direction of
the testator, or has received from the testator a personal
acknowledgment of his signature or mark, or the signature of such
other person; and each of the witnesses shall sign the Will in the
presence of the testator, but it shall not be necessary that more than
one witness be present at the same time, and no particular form of
attestation shall be necessary.
23.2. Elaborate provisions have been made in Chapter VI of the Succession Act
(Sections 74 to 111), for construction of Wills which, in their sum and substance, make
the intention of legislature clear that any irrelevant misdescription or error is not to
operate against the Will; and approach has to be to give effect to a Will once it is found
to have been executed in the sound state of mind by the testator while exercising his
own free will. However, as per Section 81 of the Succession Act, extrinsic evidence is
inadmissible in case of patent ambiguity or deficiency in the Will; and as per Section 89
thereof, a Will or bequest not expressive of any definite intention is declared void for
uncertainty. Sections 81 and 89 read as under:
81. Extrinsic evidence inadmissible in case of patent ambiguity or
deficiency.- Where there is an ambiguity or deficiency on the face of a Will, no

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 extrinsic evidence as to the intentions of the testator shall be admitted.
*** *** ***
89. Will or bequest void for uncertainty.- A Will or bequest not expressive
of any definite intention is void for uncertainty.
Moreover, it is now well settled that when the Will is surrounded by suspicious
circumstances, the Court would expect that the legitimate suspicion should be removed
before the document in question is accepted as the last Will of the testator.
23.3. As noticed, as per Section 63 of the Succession Act, the Will ought to be attested
by two or more witnesses. Hence, any document propounded as a Will cannot be used
as evidence unless at least one attesting witness has been examined for the purpose of
proving its execution, if such witness is available and is capable of giving evidence as
per the requirements of Section 68 of the Evidence Act, that reads as under:
68. Proof of execution of document required by law to be attested.-If a
document is required by law to be attested, it shall not be used as evidence
until one attesting witness at least has been called for the purpose of proving
its execution, if there be an attesting witness alive, and subject to the process
of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in
proof of the execution of any document, not being a Will, which has
been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the person
by whom it purports to have been executed is specifically denied.
24. We may now take note of the relevant principles settled by the consistent decisions
in regard to the process of examination of a Will when propounded before a Court of
law.
24.1. In the case of H. Venkatachala Iyengar (supra), a 3-Judge Bench of this Court
traversed through the vistas of the issues related with execution and proof of Will and
enunciated a few fundamental guiding principles that have consistently been followed
and applied in almost all the cases involving such issues. The synthesis and exposition
by this Court in paragraphs 18 to 22 of the said decision could be usefully reproduced
as under:
18. What is the true legal position in the matter of proof of wills? It is well
known that the proof of wills presents a recurring topic for decision in courts
and there are a large number of judicial pronouncements on the subject. The
party propounding a will or otherwise making a claim under a will is no doubt
seeking to prove a document and, in deciding how it is to be proved, we must
inevitably refer to the statutory provisions which govern the proof of
documents. Section 67 and 68, Evidence Act are relevant for this purpose.
Under Section 67, if a document is alleged to be signed by any person, the
signature of the said person must be proved to be in his handwriting, and for
proving such a handwriting Under Sections 45 and 47 of the Act the opinions of
experts and of persons acquainted with the handwriting of the person
concerned are made relevant. Section 68 deals with the proof of the execution
of the document required by law to be attested; and it provides that such a
document shall not be used as evidence until one attesting witness at least has

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been called for the purpose of proving its execution. These provisions prescribe
the requirements and the nature of proof which must be satisfied by the party
who relies on a document in a Court of law. Similarly, Sections 59 and 63 of
the Indian Succession Act are also relevant. Section 59 provides that every
person of sound mind, not being a minor, may dispose of his property by will
and the three illustrations to this Section indicate what is meant by the
expression "a person of sound mind" in the context. Section 63 requires that
the testator shall sign or affix his mark to the will or it shall be signed by some
other person in his presence and by his direction and that the signature or mark
shall be so made that it shall appear that it was intended thereby to give effect
to the writing as a will. This Section also requires that the will shall be attested
by two or more witnesses as prescribed. Thus the question as to whether
the will set up by the propounder is proved to be the last will of the
testator has to be decided in the light of these provisions. Has the
testator signed the will? Did he understand the nature and effect of
the dispositions in the will? Did he put his signature to the will
knowing what it contained? Stated broadly it is the decision of these
questions which determines the nature of the finding on the question
of the proof of wills. It would prima facie be true to say that the will has to
be proved like any other document except as to the special requirements of
attestation prescribed by Section 63 of the Indian Succession Act. As in the
case of proof of other documents so in the case of proof of wills it would be
idle to expect proof with mathematical certainty. The test to be applied would
be the usual test of the satisfaction of the prudent mind in such matters.
1 9 . However, there is one important feature which distinguishes wills from
other documents. Unlike other documents the will speaks from the death of the
testator, and so, when it is propounded or produced before a Court, the testator
who has already departed the world cannot say whether it is his will or not; and
this aspect naturally introduces an element of solemnity in the decision of the
question as to whether the document propounded is proved to be the last will
and testament of the departed testator. Even so, in dealing with the proof of
wills the Court will start on the same enquiry as in the case of the proof of
documents. The propounder would be called upon to show by satisfactory
evidence that the will was signed by the testator, that the testator at the
relevant time was in a sound and disposing state of mind, that he understood
the nature and effect of the dispositions and put his signature to the document
of his own free will. Ordinarily when the evidence adduced in support of the
will is disinterested, satisfactory and sufficient to prove the sound and
disposing state of the testator's mind and his signature as required by law,
Courts would be justified in making a finding in favour of the propounder. In
other words, the onus on the propounder can be taken to be
discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will
may be surrounded by suspicious circumstances. The alleged signature of
the testator may be very shaky and doubtful and evidence in support of the
propounder's case that the signature in question is the signature of the testator
may not remove the doubt created by the appearance of the signature; the
condition of the testator's mind may appear to be very feeble and debilitated;
and evidence adduced may not succeed in removing the legitimate doubt as to
the mental capacity of the testator; the dispositions made in the will may
appear to be unnatural, improbable or unfair in the light of relevant

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circumstances; or, the will may otherwise indicate that the said dispositions
may not be the result of the testator's free will and mind. In such cases the
Court would naturally expect that all legitimate suspicions should be
completely removed before the document is accepted as the last will of
the testator. The presence of such suspicious circumstances naturally
tends to make the initial onus very heavy; and, unless it is
satisfactorily discharged, Courts would be reluctant to treat the
document as the last will of the testator. It is true that, if a caveat is filed
alleging the exercise of undue influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances may raise a doubt as to
whether the testator was acting of his own free will in executing the will, and in
such circumstances, it would be a part of the initial onus to remove any such
legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred in
some cases the wills propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution of the wills which
confer on them substantial benefits. If it is shown that the propounder
has taken a prominent part in the execution of the will and has
received substantial benefit under it, that itself is generally treated as
a suspicious circumstance attending the execution of the will and the
propounder is required to remove the said suspicion by clear and
satisfactory evidence. It is in connection with wills that present such
suspicious circumstances that decisions of English Courts often
mention the test of the satisfaction of judicial conscience. It may be
that the reference to judicial conscience in this connection is a heritage from
similar observations made by ecclesiastical Courts in England when they
exercised jurisdiction with reference to wills; but any objection to the use of
the word 'conscience' in this context would, in our opinion, be purely technical
and academic, if not pedantic. The test merely emphasizes that, in determining
the question as to whether an instrument produced before the Court is the last
will of the testator, the Court is deciding a solemn question and it must be fully
satisfied that it had been validly executed by the testator who is no longer
alive.
2 2 . It is obvious that for deciding material questions of fact which arise in
applications for probate or in actions on wills, no hard and fast or inflexible
Rules can be laid down for the appreciation of the evidence. It may, however,
be stated generally that a propounder of the will has to prove the due
and valid execution of the will and that if there are any suspicious
circumstances surrounding the execution of the will the propounder
must remove the said suspicions from the mind of the Court by cogent
and satisfactory evidence. It is hardly necessary to add that the result of the
application of these two general and broad principles would always depend
upon the facts and circumstances of each case and on the nature and quality of
the evidence adduced by the parties. It is quite true that, as observed by Lord
Du Parcq in Harmes v. Hinkson, MANU/PR/0071/1946 : 50 Cal W N 895 : (AIR
1946 PC 156), "where a will is charged with suspicion, the Rules enjoin a
reasonable scepticism, not an obdurate persistence in disbelief. They do not
demand from the Judge, even in circumstances of grave suspicion, a resolute
and impenetrable incredulity. He is never required to close his mind to the
truth". It would sound platitudinous to say so, but it is nevertheless true that in

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 discovering truth even in such cases the judicial mind must always be open
though vigilant, cautious and circumspect.
24.2. In Rani Purnima Debi (supra), this Court referred to the aforementioned
decision in H. Venkatachala Iyengar and further explained the principles which
govern the proving of a Will as follows:
5 . Before we consider the facts of this case it is well to set out the principles
which govern the proving of a will. This was considered by this Court in H.
Venkatachala Iyengar v. B.N. Thimmajamma, MANU/SC/0115/1958 : (1959)
Supp (1) SCR 426 : AIR 1959 SC 443. It was observed in that case that the
mode of proving a will did not ordinarily differ from that of proving any other
document except as to the special requirement of attestation prescribed in the
case of a will by Section 63 of the Indian Succession Act. The onus of proving
the will was on the propounder and in the absence of suspicious circumstances
surrounding the execution of the will proof of testamentary capacity and
signature of the testator as required by law was sufficient to discharge the
onus. Where, however, there were suspicious circumstances, the onus would be
on the propounder to explain them to the satisfaction of the Court before the
will could be accepted as genuine. If the caveator alleged undue influence,
fraud or coercion, the onus would be on him to prove the same. Even where
there were no such pleas but the circumstances gave rise to doubts, it
was for the propounder to satisfy the conscience of the Court. Further,
what are suspicious circumstances was also considered in this case. The alleged
signature of the testator might be very shaky and doubtful and evidence in
support of the propounder's case that the signature in question was the
signature of the testator might not remove the doubt created by the appearance
of the signature. The condition of the testator's mind might appear to be very
feeble and debilitated and evidence adduced might not succeed in removing the
legitimate doubt as to the mental capacity of the testator; the dispositions
made in the will might appear to be unnatural, improbable or unfair in
the light of relevant circumstances; or the will might otherwise
indicate that the said dispositions might not be the result of the
testator's free will and mind. In such cases, the Court would naturally
expect that all legitimate suspicions should be completely removed before the
document was accepted as the last will of the testator. Further, a propounder
himself might take a prominent part in the execution of the will which
conferred on him substantial benefits. If this was so it was generally
treated as a suspicious circumstance attending the execution of the
will and the propounder was required to remove the doubts by clear and
satisfactory evidence. But even when where there suspicious circumstances and
the propounder succeeded in removing them, the Court would grant probate,
though the will might be unnatural and might cut off wholly or in part near
relations.
24.3. In the case of Indu Bala Bose (supra), this Court again said,-
7. This Court has held that the mode of proving a Will does not ordinarily differ
from that of proving any other document except to the special requirement of
attestation prescribed in the case of a Will by Section 63 of the Succession Act.
The onus of proving the Will is on the propounder and in the absence of
suspicious circumstances surrounding the execution of the Will, proof of
testamentary capacity and the signature of the testator as required by law is

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 sufficient to discharge the onus. Where however there are suspicious
circumstances, the onus is on the propounder to explain them to the
satisfaction of the court before the court accepts the Will as genuine.
Even where circumstances give rise to doubts, it is for the propounder to satisfy
the conscience of the court. The suspicious circumstances may be as to
the genuineness of the signatures of the testator, the condition of the
testator's mind, the dispositions made in the Will being unnatural,
improbable or unfair in the light of relevant circumstances, or there
might be other indications in the Will to show that the testator's mind was not
free. In such a case the court would naturally expect that all legitimate
suspicions should be completely removed before the document is accepted as
the last Will of the testator. If the propounder himself takes a prominent part in
the execution of the Will which confers a substantial benefit on him, that is also
a circumstance to be taken into account, and the propounder is required to
remove the doubts by clear and satisfactory evidence. If the propounder
succeeds in removing the suspicious circumstances the court would grant
probate, even if the Will might be unnatural and might cut off wholly or in part
near relations.
8 . Needless to say that any and every circumstance is not a
"suspicious" circumstance. A circumstance would be "suspicious"
when it is not normal or is not normally expected in a normal situation
or is not expected of a normal person.
24.4. We may also usefully refer to the principles enunciated in the case of Jaswant
Kaur (supra) for dealing with a Will shrouded in suspicion, as follows:
9. In cases where the execution of a will is shrouded in suspicion, its
proof ceases to be a simple lis between the Plaintiff and the
Defendant. What, generally, is an adversary proceeding becomes in such
cases a matter of the court's conscience and then the true question which
arises for consideration is whether the evidence led by the propounder
of the will is such as to satisfy the conscience of the court that the will
was duly executed by the testator. It is impossible to reach such
satisfaction unless the party which sets up the will offers a cogent and
convincing explanation of the suspicious circumstances surrounding the making
of the will.
24.5. In the case of Uma Devi Nambiar (supra), this Court extensively reviewed the
case law dealing with a Will, including the Constitution Bench decision of this Court in
the case of Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and
Ors. MANU/SC/0278/1963 : AIR 1964 SC 529, and observed that mere exclusion of the
natural heirs or giving of lesser share to them, by itself, will not be considered to be a
suspicious circumstance. This Court observed, inter alia, as under:
15. Section 63 of the Act deals with execution of unprivileged Wills. It lays
down that the testator shall sign or shall affix his mark to the Will or it shall be
signed by some other person in his presence and by his direction. It further
lays down that the Will shall be attested by two or more witnesses, each of
whom has seen the testator signing or affixing his mark to the Will or has seen
some other person sign the Will, in the presence and by the direction of the
testator and each of the witnesses shall sign the Will in the presence of the
testator. Section 68 of the Indian Evidence Act, 1872 (in short the "Evidence

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Act") mandates examination of one attesting witness in proof of a Will, whether
registered or not. The law relating to the manner and onus of proof and also
the duty cast upon the court while dealing with a case based upon a Will has
been examined in considerable detail in several decisions of this Court ....... A
Constitution Bench of this Court in Shashi Kumar Banerjee's case succinctly
indicated the focal position in law as follows: (AIR p. 531, para 4)
The mode of proving a Will does not ordinarily differ from that of
proving any other document except as to the special requirement of
attestation prescribed in the case of a Will by Section 63 of the Indian
Succession Act. The onus of proving the Will is on the propounder and
in the absence of suspicious circumstances surrounding the execution
of the Will, proof of testamentary capacity and the signature of the
testator as required by law is sufficient to discharge the onus. Where
however there are suspicious circumstances, the onus is on the
propounder to explain them to the satisfaction of the court before the
court accepts the Will as genuine. Where the caveator alleges undue
influence, fraud and coercion, the onus is on him to prove the same.
Even where there are no such pleas but the circumstances give rise to
doubts, it is for the propounder to satisfy the conscience of the court.
The suspicious circumstances may be as to the genuineness of the
signature of the testator, the condition of the testator's mind, the
dispositions made in the Will being unnatural, improbable or unfair in
the light of relevant circumstances or there might be other indications
in the Will to show that the testator's mind was not free. In such a case
the court would naturally expect that all legitimate suspicion should be
completely removed before the document is accepted as the last Will of
the testator. If the propounder himself takes part in the execution of
the Will which confers a substantial benefit on him, that is also a
circumstance to be taken into account, and the propounder is required
to remove the doubts by clear and satisfactory evidence. If the
propounder succeeds in removing the suspicious circumstances the
court would grant probate, even if the Will might be unnatural and
might cut off wholly or in part near relations.
16. A Will is executed to alter the ordinary mode of succession and by the very
nature of things it is bound to result in earlier reducing or depriving the share
of natural heirs. If a person intends his property to pass to his natural heirs,
there is no necessity at all of executing a Will. It is true that a propounder of
the Will has to remove all suspicious circumstances. Suspicion means doubt,
conjecture or mistrust. But the fact that natural heirs have either been excluded
or a lesser share has been given to them, by itself without anything more,
cannot be held to be a suspicious circumstance specially in a case where the
bequest has been made in favour of an offspring. As held in P.P.K. Gopalan
Nambiar v. P.P.K. Balakrishnan Nambiar and Ors. MANU/SC/0354/1995 :
[1995] 2 SCR 585, it is the duty of the propunder of the Will to remove all the
suspected features, but there must be real, germane and valid suspicious
features and not fantasy of the doubting mind. It has been held that if the
propounder succeeds in removing the suspicious circumstances, the court has
to give effect to the Will, even if the Will might be unnatural in the sense that it
has cut off wholly or in part near relations. ..... In Rabindra Nath Mukherjee and
Anr. v. Panchanan Banerjee (dead) by LRs. and Ors. MANU/SC/0322/1995 : AIR
1995 SC 1684, it was observed that the circumstance of deprivation of natural

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 heirs should not raise any suspicion because the whole idea behind execution
of the Will is to interfere with the normal line of succession and so, natural
heirs would be debarred in every case of Will. Of course, it may be that in some
cases they are fully debarred and in some cases partly.
24.6. In the case of Mahesh Kumar (supra), this Court indicated the error of approach
on the part of the High Court while appreciating the evidence relating to the Will as
follows:
44. The issue which remains to be examined is whether the High Court was
justified in coming to the conclusion that the execution of the will dated 10-2-
1992 was shrouded with suspicion and the Appellant failed to dispel the
suspicion? At the outset, we deem it necessary to observe that the learned
Single Judge misread the statement of Sobhag Chand (DW3) and recorded
something which does not appear in his statement. While Sobhag Chand
categorically stated that he had signed as the witness after Shri Harishankar
had signed the will, the portion of his statement extracted in the impugned
judgment gives an impression that the witnesses had signed even before the
executant had signed the will.
4 5 . Another patent error committed by the learned Single Judge is that he
decided the issue relating to validity of the will by assuming that both the
attesting witnesses were required to append their signatures simultaneously.
Section 63(c) of the 1925 Act does not contain any such requirement and it is
settled law that examination of one of the attesting witnesses is sufficient. Not
only this, while recording an adverse finding on this issue, the learned Single
Judge omitted to consider the categorical statements made by DW 3 and DW 4
that the testator had read out and signed the will in their presence and
thereafter they had appended their signatures.
46. The other reasons enumerated by the learned Single Judge for holding that
the execution of will was highly suspicious are based on mere
surmises/conjectures. The observation of the learned Single Judge that the
possibility of obtaining signatures of Shri Harishankar and attesting witnesses
on blank paper and preparation of the draft by Shri S.K. Agarwal, Advocate on
pre-signed papers does not find even a semblance of support from the
pleadings and evidence of the parties. If Respondent 1 wanted to show that the
will was drafted by the advocate after Shri Harishankar and attesting witnesses
had signed blank papers, he could have examined or at least summoned Shri
S.K. Agarwal, Advocate, who had represented him before the Board of Revenue.
.....
24.7. Another decision cited on behalf of the Appellant in the case of Leela Rajagopal
may also be referred where this Court summarised the principles that ultimately, the
judicial verdict in relation to a Will and suspicious circumstances shall be on the basis
of holistic view of the matter with consideration of all the unusual features and
suspicious circumstances put together and not on the impact of any single feature. This
Court said,-
13. A will may have certain features and may have been executed in certain
circumstances which may appear to be somewhat unnatural. Such unusual
features appearing in a will or the unnatural circumstances surrounding its
execution will definitely justify a close scrutiny before the same can be

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 accepted. It is the overall assessment of the court on the basis of such scrutiny;
the cumulative effect of the unusual features and circumstances which would
weigh with the court in the determination required to be made by it. The
judicial verdict, in the last resort, will be on the basis of a consideration of all
the unusual features and suspicious circumstances put together and not on the
impact of any single feature that may be found in a will or a singular
circumstance that may appear from the process leading to its execution or
registration. This, is the essence of the repeated pronouncements made by this
Court on the subject including the decisions referred to and relied upon before
us.
24.8. We need not multiply the references to all and other decisions cited at the Bar,
which essentially proceed on the aforesaid principles while applying the same in the
given set of facts and circumstances. Suffice would be to point out that in a recent
decision in Civil Appeal No. 6076 of 2009: Shivakumar and Ors. v.
Sharanabasppa and Ors., decided on 24.04.2020, this Court, after traversing through
the relevant decisions, has summarised the principles governing the adjudicatory
process concerning proof of a Will as follows:
1 . Ordinarily, a Will has to be proved like any other document; the test to be
applied being the usual test of the satisfaction of the prudent mind. Alike the
principles governing the proof of other documents, in the case of Will too, the
proof with mathematical accuracy is not to be insisted upon.
2 . Since as per Section 63 of the Succession Act, a Will is required to be
attested, it cannot be used as evidence until at least one attesting witness has
been called for the purpose of proving its execution, if there be an attesting
witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator
and, therefore, the maker thereof is not available for deposing about the
circumstances in which the same was executed. This introduces an element of
solemnity in the decision of the question as to whether the document
propounded is the last Will of the testator. The initial onus, naturally, lies on
the propounder but the same can be taken to have been primarily discharged on
proof of the essential facts which go into the making of a Will.
4 . The case in which the execution of the Will is surrounded by suspicious
circumstances stands on a different footing. The presence of suspicious
circumstances makes the onus heavier on the propounder and, therefore, in
cases where the circumstances attendant upon the execution of the document
give rise to suspicion, the propounder must remove all legitimate suspicions
before the document can be accepted as the last Will of the testator.
5 . If a person challenging the Will alleges fabrication or alleges fraud, undue
influence, coercion et cetera in regard to the execution of the Will, such pleas
have to be proved by him, but even in the absence of such pleas, the very
circumstances surrounding the execution of the Will may give rise to the doubt
or as to whether the Will had indeed been executed by the testator and/or as to
whether the testator was acting of his own free will. In such eventuality, it is
again a part of the initial onus of the propounder to remove all reasonable
doubts in the matter.
6 . A circumstance is "suspicious" when it is not normal or is 'not normally

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 expected in a normal situation or is not expected of a normal person'. As put by
this Court, the suspicious features must be 'real, germane and valid' and not
merely the 'fantasy of the doubting mind.'
7 . As to whether any particular feature or a set of features qualify as
"suspicious" would depend on the facts and circumstances of each case. A
shaky or doubtful signature; a feeble or uncertain mind of the testator; an
unfair disposition of property; an unjust exclusion of the legal heirs and
particularly the dependants; an active or leading part in making of the Will by
the beneficiary thereunder et cetera are some of the circumstances which may
give rise to suspicion. The circumstances above-noted are only illustrative and
by no means exhaustive because there could be any circumstance or set of
circumstances which may give rise to legitimate suspicion about the execution
of the Will. On the other hand, any of the circumstance qualifying as being
suspicious could be legitimately explained by the propounder. However, such
suspicion or suspicions cannot be removed by mere proof of sound and
disposing state of mind of the testator and his signature coupled with the proof
of attestation.
8. The test of satisfaction of the judicial conscience comes into operation when
a document propounded as the Will of the testator is surrounded by suspicious
circumstance/s. While applying such test, the Court would address itself to the
solemn questions as to whether the testator had signed the Will while being
aware of its contents and after understanding the nature and effect of the
dispositions in the Will?
9 . In the ultimate analysis, where the execution of a Will is shrouded in
suspicion, it is a matter essentially of the judicial conscience of the Court and
the party which sets up the Will has to offer cogent and convincing explanation
of the suspicious circumstances surrounding the Will.
CONTEST OF THE MATTER BY Respondent No. 1
25. Having taken note of the principles which shall be the guiding factor in dealing with
the main questions posed in this matter, we may examine the rival contentions. Before
entering into the contentions relating to the suspicious circumstances concerning the
Will in question, it would be appropriate to deal with and dispose of a preliminary
objection of the learned Counsel for the Appellant as regards contest of the matter by
Respondent No. 1. As noticed, it has been submitted with reference to Section 268 of
the Succession Act, Order VIII Rule 10, Order XIV Rule 1(6) and Order XV Rule 2 Code
of Civil Procedure and the case of Bachhaj Nahar (supra) that the status of
Respondent No. 1 remains that of a Defendant who has not filed the written statement
and who is not at issue; and hence, the contentions urged on her behalf need no
consideration and the evidence led by her remains inadmissible. The submissions have
been countered with reference to the principles in H. Venkatachala Iyengar and Rani
Purnima Debi (supra) as also with reference to Order VIII Rule 5(2), Order VIII Rule
10 Code of Civil Procedure and the decision in Balraj Taneja (supra). It is submitted
that ultimately, the Probate Court is a Court of conscience and the Respondent No. 1,
being the elder daughter of the testatrix, has every right to make submissions
concerning the Will in question. In our view, the submission made on behalf of the
Appellant seeking exclusion of Respondent No. 1 remains totally baseless and could
only be rejected.

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25.1. The objection on behalf of the Appellant does not stand in conformity with the
law declared in H. Venkatachala Iyengar and Rani Purnima Debi (supra) and
scores of other decisions where this Court has consistently held that the probate
proceeding is ultimately a matter of conscience of the Court; and irrespective of
whether any plea in opposition is taken or not, a propounder of Will is required to
satisfy the conscience of the Court with removal of all the suspicious circumstances. By
the very nature and consequence of this proceeding, filing or non-filing of written
statement or objections by any party pales into insignificance and is of no effect. The
probate proceeding is not merely inter-partes proceeding but leads to judgment in rem
and, therefore, even when no one contests, it does not ipso facto lead to grant of
probate. The probate is granted only on proof of Will as also on removal of suspicious
circumstances, if there be any, to the final satisfaction of the conscience of the Court.
25.2. In view of the above, reference to the provisions of Order VIII Rule 10, Order XIV
Rule 1(6) and Order XV Rule 27 remains inapposite in relation to the proceeding before
a Probate Court. We may hasten to observe that even in a regular civil suit, merely for
want of written statement by a Defendant, it is not necessary that a judgment would
always follow in favour of the Plaintiff without proof of the basic facts and without
making out a clear case of right to relief. Similarly, the decision in the case of Bachhaj
Nahar (supra) that relief cannot be granted in any Court without requisite pleadings
has hardly any application to the question at hand.
25.3. In the case of Balraj Taneja (supra), this Court examined the provisions
contained in Sub-rule (2) of Rule 5 of Order XVIII of Code of Civil Procedure8 and said
that,-
1 1 . Sub-rule (2) provides that if the Defendant has not filed his written
statement, it would be lawful for the court to pronounce judgment on the basis
of the facts contained in the plaint. The Rule further proceeds to say that
notwithstanding that the facts stated in the plaint are treated as admitted, the
court, though it can lawfully pass the judgment, may before passing the
judgment require such fact to be proved....
Apart from the above, even as regards Rule 10 of Order XVIII, this Court said,-
27. In view of the above, it is clear that the court, at no stage, can act blindly
or mechanically. While enabling the court to pronounce judgment in a situation
where no written statement is filed by the Defendant, the court has also been
given the discretion to pass such order as it may think fit as an alternative. This
is also the position Under Order 8 Rule 10 Code of Civil Procedure where the
court can either pronounce judgment against the Defendant or pass such order
as it may think fit.
25.4. We need not multiply the authorities and discussion in this regard. Suffice it to
say that even in a regular civil suit, mere non-filing of written statement by the
Defendant does not always lead to a judgment in favour of the Plaintiff. Noteworthy it is
that regular civil suit usually leads to a judgment inter-partes and not in rem. Even
then, the requirement of proof is not obviated. When the proceeding is solemn in nature
like that for probate, which leads to judgment in rem, it is beyond the cavil that mere
non-filing of caveat or opposition is not decisive of the matter. The propounder, in
every matter for grant of probate, irrespective of opposition or even admission by any
party, is required to satisfy the conscience of the Court, with removal of suspicious
circumstances, if any.

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25.5. Apart from the aforementioned general principles, it is also significant to notice
in the present case that the Respondent No. 1 is none other but the elder widowed
daughter of testatrix regarding whom, some semblance of right, via the construction to
be carried out by the Appellant, is proposed in the Will in question. Looking to her
status as elder widowed daughter of the testatrix and looking to the stipulation in the
Will in question, it is evident that even without filing any written statement, the
Respondent No. 1 is entitled to show that the purported grant of some right to her is
illusory or is, in fact, no grant at all; and that her mother would not have put her in
such an insecure position as would be the result of the Will. As a necessary corollary,
her right to demonstrate the suspicious circumstances is inherent in the very process
envisaged for the Probate Court. This is apart from the fact that the Respondent No. 1
has indeed examined herself as a witness without objection by the Appellant.
25.6. Thus, the objection against contest by the Respondent No. 1, as raised on behalf
of the Appellant, deserves to be, and is hereby rejected.
SUSPICIOUS CIRCUMSTANCES CONCERNING THE WILL IN QUESTION
26. While examining the relevant factual aspects and circumstances of this case on the
anvil of the principles aforesaid, we may usefully observe that in the case of Leela
Rajagopal (supra), this Court found justified the concurrent findings on due execution
of Will and, in the context of facts, participation of the beneficiary in execution of the
Will and his acquaintance with one of the attesting witness were found to be reasonably
explained. However, significantly, in the said case, this Court also cautioned against
repeated reappreciation of evidence, particularly in the appeal lodged only by way of
special leave, in the following words:
17. Before parting we would like to observe that the very fact that an appeal to
this Court can be lodged only upon grant of special leave to appeal would
indicate the highly circumscribed nature of the jurisdiction of this Court. In
contrast to a statutory appeal, an appeal lodged upon grant of special leave
pursuant to a provision of the Constitution would call for highly economic
exercise of the power which though wide to strike at injustice wherever it
occurs must display highly judicious application thereof. Determination of
facts made by the High Court sitting as a first appellate court or even
while concurring as a second appellate court would not be reopened
unless the same gives rise to questions of law that require a serious
debate or discloses wholly unacceptable conclusions of fact which
plainly demonstrate a travesty of justice. Appreciation or reappreciation of
evidence must come to a halt at some stage of the judicial proceedings and
cannot percolate to the constitutional court exercising jurisdiction Under Article
136.
26.1. In the present case too, the Trial Court has returned the findings against the
Appellant after due appreciation of evidence and the High Court has affirmed such
findings after independent and thorough examination of evidence. There appears hardly
any scope for disturbing such concurrent findings by entering into the process of
reappreciation of entire evidence yet, in view of the submissions made and in the
interest of justice, we have gone through the material on record to find if there be any
such perversity which might result in serious miscarriage of justice. We find none.
2 7 . As noticed, there has not been any question on the testamentary capacity and
soundness of mind of the testatrix; and her handwriting as also signatures on the Will

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in question are also beyond controversy. However, the Trial Court and the High Court
have concurrently found some such suspicious circumstances which are of material
bearing and which have remained unexplained. Put in a nutshell, the unexplained
suspicious circumstances so found are: (a) that Appellant, the major beneficiary, played
an active role in execution of the Will in question and attempted to conceal this fact
before the Court; (b) that there had not been any plausible reason for non-inclusion of
the only son and other daughter of the testatrix in the process of execution of the Will
and for excluding them from the major part of the estate in question; (c) that there was
no clarity about the construction supposed to be carried out by the Appellant; (d) that
the manner of writing and execution of the Will with technical and legal words was
highly doubtful; and (e) that the attesting witnesses were unreliable and there were
contradictions in the statements of the witnesses. Because of these major circumstances
coupled with various supplemental factors, the Trial Court and the High Court felt
dissatisfied on the root question as to whether the testatrix duly executed the Will in
question after understanding its contents.
28. There is no doubt that any of the factors taken into account by the Trial Court and
the High Court, by itself and standing alone, cannot operate against the validity of the
propounded Will. That is to say that, the Will in question cannot be viewed with
suspicion only because the Appellant had played an active role in execution thereof
though she is the major beneficiary; or only because the Respondents were not included
in the process of execution of the Will; or only because of unequal distribution of
assets; or only because there is want of clarity about the construction to be carried out
by the Appellant; or only because one of the attesting witnesses being acquaintance of
the Appellant; or only because there is no evidence as to who drafted the printed part of
the Will and the note for writing the opening and concluding passages by the testatrix in
her own hand; or only because there is some discrepancy in the oral evidence led by
the Appellant; or only because of any other factor taken into account by the Courts or
relied upon by the Respondents. The relevant consideration would be about the quality
and nature of each of these factors and then, the cumulative effect and impact of all of
them upon making of the Will with free agency of the testatrix. In other words, an
individual factor may not be decisive but, if after taking all the factors together,
conscience of the Court is not satisfied that the Will in question truly represents the last
wish and propositions of the testator, the Will cannot get the approval of the Court;
and, other way round, if on a holistic view of the matter, the Court feels satisfied that
the document propounded as Will indeed signifies the last free wish and desire of the
testator and is duly executed in accordance with law, the Will shall not be disapproved
merely for one doubtful circumstance here or another factor there.
2 9 . Keeping the applicable principles in view, we may examine the factors and
circumstances which are suspicious in character and their overall impact on the
document in question.
29.1. While entering into the facts and circumstances related with the Will, profitable it
would be to recapitulate the background and the set up in which the contested Will is
said to have been executed. The immovable property in question at No. D-179, Defence
Colony, New Delhi was originally of the ownership of father of the contesting parties,
husband of testatrix. The ground floor of this property was given in gift to the Appellant
on 25.01.2001, whereas the first floor and the other portion/s came to the testatrix by
way of the Will of her husband dated 14.02.2001. The husband of testatrix expired on
20.10.2002. The Appellant, married daughter of the testatrix, was admittedly living in a
different locality, that is, at Panchshila Park for 20-22 years, whereas son of the
testatrix, who was serving in Army, remained posted outside and was lastly residing in

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Shimla. The testatrix was a cancer patient and was under regular treatment in an Army
Hospital at Delhi. Significantly, the testatrix was residing at the said ground floor
portion of the building in question (which had already become property of the Appellant
by virtue of the gift by her father). The Respondent No. 1, the widowed daughter of the
testatrix, was residing at the first floor of the same building with her own daughter.
Admittedly, the said first floor of the house was the property of testatrix by virtue of the
Will of her husband. It is not a matter of much dispute that Respondent No. 1, while
living in the same building, was taking care of the testatrix and was even taking her to
Army Hospital for treatment.
29.2. In the given set-up, a basic question immediately crops up as to what could be
the reason for the testatrix being desirous of providing unequal distribution of her
assets by giving major share to the Appellant in preference to her other two children.
The Appellant has suggested that the parents had special affection towards her. Even if
this suggestion is taken on its face value, it is difficult to assume that the alleged
special affection towards one child should necessarily correspond to repugnance
towards the other children by the same mother. Even if the parents had special liking
and affection towards the Appellant, as could be argued with reference to the gift made
by the father in her favour of the ground floor of the property in question, it would be
too far stretched and unnatural to assume that by the reason of such special affection
towards Appellant, the mother drifted far away from the other children, including the
widowed daughter who was residing on the upper floor of the same house and who was
taking her care. In the ordinary and natural course, a person could be expected to be
more inclined towards the child taking his/her care; and it would be too unrealistic to
assume that special love and affection towards one, maybe blue-eyed, child would also
result in a person leaving the serving and needy child in lurch. As noticed, an unfair
disposition of property or an unjust exclusion of the legal heirs, particularly the
dependants, is regarded as a suspicious circumstance. The Appellant has failed to
assign even a wee bit reason for which the testatrix would have thought it proper to
leave her widowed daughter in the heap of uncertainty as emanating from the Will in
question. Equally, the suggestion about want of thickness of relations between the
testatrix and her son (Respondent No. 2) is not supported by the evidence on record.
The facts about the testatrix sending good wishes on birthday to her son and joining
family functions with him, even if not establishing a very great bond between the
mother and her son, they at least belie the suggestion about any strain in their
relations. Be that as it may, even if the matter relating to the son of testatrix is not
expanded further, it remains inexplicable as to why the testatrix would not have been
interested in making adequate and concrete provision for the purpose of her widowed
daughter (Respondent No. 1).
29.3. The aforesaid factor of unexplained unequal distribution of the property is
confounded by two major factors related with making of the Will in question: one, the
active role played by the Appellant in the process; and second, the virtual exclusion of
the other children of testatrix in the process. As noticed, an active or leading part in
making of the Will by the beneficiary thereunder has always been regarded as a
circumstance giving rise to suspicion but, like any other circumstance, it could well be
explained by the propounder and/or beneficiary. In the present case, it is not in dispute
that out of the three children of testatrix, the Appellant alone was present at the time of
execution of the Will in question on 20.05.2003. As noticed, at the relevant point of
time, the Appellant was admittedly living away and in a different locality for about 20-
22 years, whereas testatrix was residing at the ground floor of the building and the
Respondent No. 1 was at the first floor. Even if we leave aside the case of the
Respondent No. 2 who was living in Shimla, there was no reason that in the normal and

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ordinary course, the testatrix would not have included the Respondent No. 1 in
execution of the Will in question, particularly when she was purportedly making
adequate arrangements towards the welfare of Respondent No. 1. In other words, if the
Will in question was being made without causing any prejudice to the Respondent No.
1, there was no reason to keep her away from this process. Admittedly, the Will in
question was not divulged for about three years. Therefore, the added feature
surrounding the execution of the Will had been of unexplained exclusion of the
Respondent No. 1 from the process.
29.4. Apart from the above, active participation of the Appellant in making of the Will
in question cannot be left aside as one of the minor factors for the reason that the
Appellant indeed attempted to project a face of innocence by suggesting that the
testatrix did not discuss the Will with her; that she was not aware as to who drafted the
Will and where was it typed; and that she came to know about the Will only on
20/21.05.2003. The Appellant even stated that she did not call the witnesses and that
the testatrix herself might have called them. The witness PW-2 has clearly contradicted
the Appellant by deposing that on 18.05.2003, it was the Appellant who invited him to
her mother's place. Thus, the Appellant, by her conduct of attempting to avoid the fact
that she was aware of making of Will, at least two days before its execution, has only
strengthened the suspicion arising because of her active participation in execution of
the Will while keeping the other children of the testatrix excluded from the process.
29.5. Yet further, when we look at the Will in question itself and examine the evidence
adduced in regard to its execution, a few more factors of suspicion emerge on the face
of the record.
29.5.1. In regard to the contents and frame of the document in question, learned
Counsel for the Appellant has submitted that greater degree of presumption that arises
in the case of a "holograph" Will, as enunciated in the case of Joyce Primrose Prestor
(supra), is applicable to the present case too, where the significant contents relating to
the particulars of the person and bequeath, in the opening and concluding passages, are
duly written in her own hand by the testatrix. The submissions so made on behalf of the
Appellant carry their own shortcomings and demerits for the reason that the Will in
question does not directly answer to the description of a "holograph" Will because,
except for the opening and concluding passages, the entire Will is in electronic print.
The core of bequeathing part is also in print and not in handwriting. In the case of
Joyce Primrose Prestor, the entire Will was handwritten, which is not the case here.
Coupled with this remains the admitted fact that even the handwritten portions are not
of the diction of the testatrix herself. She had only copied them from a note available
with her; and it is apparent from the document that such handwritten portions are
jotted down on the base lines drawn on the paper.
29.5.2. Thus, practically, it was a case of the testatrix merely copying, on the dotted
lines, the text already given to her. The sanctity attached to a bequeath in the
handwriting of the testator presupposes a coordinated work of a free hand and a free
mind, that is, the hand writes what comes out of and given by the mind. In the present
case, it is difficult to be satisfied that what is found written in hand by the testatrix had
been dictated by her own mind so as to make it an expression of her own free will.
29.5.3. Moreover, the handwritten portions carry such formal and legal expressions like
"testament" and "set and subscribed my hand", which are the tools of the language
employed by a person who is conversant with legal format and requirements for
execution of such a document; and, ordinarily, a layperson like the testatrix is not

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expected to be conversant with them. The printed portion also carries the expressions
like "codicil", "give, devise and bequeath", which are not the expressions of a layperson.
In the given circumstances, the want of evidence as to who drafted the printed portion
and the said note (for copying on the dotted lines) becomes an added factor towards
suspicion as to whether the contents of the document in question are, in fact,
expressive of the actual desire of the testatrix towards succession of her property.
29.5.4. This set of suspicious circumstances concerning the process of execution of the
document in question reaches to impenetrable finale by another major part of
contradictions in oral evidence. The Appellant asserted in her testimony that the
testatrix discussed the contents of the Will with the attesting witnesses but both of them
(PW-2 and PW-3) consistently maintained that the contents were not discussed with
them. Thus, the Appellant has failed to clear the doubts as to whether what is found
written in the document in question (both by hand and in print) carry and convey the
last wish of the testatrix.
3 0 . Going yet further, when the core contents of the document in question are
examined, what we find is another load of several unclear doubts and variety of
uncertainties. We would hasten to observe that as per Section 81 of the Succession Act,
if there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to
the intentions of the testator shall be admitted. Thus, everything related with the true
intention of testatrix in the present case is to be gathered from the contents of the Will
in question itself.
30.1. As per the stipulation in Clause 1 of the bequeathing contents, the first floor,
terrace and all other properties except the ground floor are given to the Appellant with
directions that she would carry out either of the two options as deemed proper, namely,
either to construct on the terrace of the building such residential facility as may be
permissible under the Municipal Building Bye-laws at the time of demise of the testatrix
and to hand over possession of the construction to Respondent No. 1 while retaining
terrace rights thereon; or in the alternative, to demolish the entire building and carry
out such construction as may be permissible under the Municipal Building Bye-laws and
become exclusive owner thereof, save and except that the highest floor of such building
shall go to the Respondent No. 1, while again, the terrace rights shall remain with the
Appellant. At the first blush, it may appear as if by these stipulations, the testatrix was
duly taking care of the interests of Respondent No. 1. However, a closer look gives rise
to manifold questions which carry no plausible answer.
30.2. In the said stipulations, neither any time frame is provided for the Appellant to
carry out the expected construction nor the nature, quality and extent of such
construction has been spelt out. It is also not clear as to what would happen in the
event of the Appellant not carrying out such construction, that is, as to whether she
would stand divested of the property already bequeathed?
30.3. Apart from all the aforesaid aspects, the fundamental fact remains that none of
the stipulations could have been legally made by the testatrix, nor they could be
enforced in any proceedings. This is for the reason that nowhere in the document any
provision has been made for carrying out such construction out of the estate of the
testatrix. It remains questionable if the testatrix was entitled to issue such directions in
the testament, which could have been executed only through the property of the legatee
and not from her own estate?
30.4. Yet further, the stipulation in the alternative in Sub-clause (b) of Clause 1 of the

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Will remains non-est on the face of the record. Admittedly, the ground floor of the
building in question is the property of the Appellant for having been gifted by her
father. The direction for demolition of the entire building as contained in the said Sub-
clause (b) includes in it the direction to demolish the ground floor too. The testatrix
could not have given any such direction because that amounts to intrusion into the
property rights of the Appellant in such a manner so as to direct her to pull down her
own property and lose value thereof and then, to invest further by raising a new
construction.
30.5. Moreover, whether as per Sub-clause (a) or as per Sub-clause (b), if at all the
Appellant were to make any such construction as expected, it would become her own
property; and the question would yet remain as to how the Respondent No. 1 shall
enforce conveyance of the Appellant's title to herself?
30.6. It remains trite that no one can convey a better title than what he had; as
expressed in the maxim: 'Nemo dat quod non habet'9. The testatrix never had any right
over the property belonging to the Appellant and could not have conveyed to the
Respondent No. 1 any property which was of the ownership of the Appellant or which
might be acquired or raised by the Appellant in future by her own funds. On this ground
alone, the Will in question is required to be considered void as per Section 89 of the
Succession Act, when the principal bequeathing stipulation in the Will suffers from
uncertainty to the hilt.
30.7. A close look at the Will in question brings forth yet another interesting, nay
disturbing, feature of its contents. Whilst in the first alternative in Sub-clause (a) of
Clause 1 of the bequeathing part of the Will, the testatrix expected that the Appellant
shall construct "residential facility of such covered area as is permissible under the
Municipal Building Bye-laws at the time of my demise", whereas, in Sub-clause (b)
thereof, the testatrix provided the alternative that the Appellant shall carry out new
construction "as is permissible under the Municipal Building Bye-laws". The expression
"at the time of my demise", as occurring in Sub-clause (a) does not occur in Sub-clause
(b). Now, it remains elementary that if a construction is to be raised, it has to conform
to the Building Bye-laws or Regulations as in force and as applicable at the relevant
time of construction. The testatrix could not have overridden the operation of law by
providing that the construction could be raised as permissible under the Bye-laws at the
time of her demise. If that was not the meaning of Sub-clause (a), then it remains
questionable as to why the expression "at the time of my demise" at all occurred there
and the question further remains as to why the same was omitted in Sub-clause (b)?
30.8. Therefore, literal reading of the Will in question makes it clear that the purported
provision for the Respondent No. 1 is illusory and an eye wash because on the practical
side, the provision is inexecutable and unenforceable; and the Respondent No. 1 is not
likely to get anything thereunder.
31. In the ultimate analysis, we are satisfied that the Will in question is surrounded by
various suspicious circumstances which are material in nature and which have gone
unexplained. The cumulative effect of these suspicious circumstances is that it cannot
be said that the testatrix was aware of and understood the meaning, purport and effect
of the contents of the Will in question. The Appellant, while seeking probate, has not
only failed to remove and clear the aforesaid suspicious circumstances but has even
contributed her own part in lending more weight to each and every suspicious
circumstance. The Will in question cannot be probated from any standpoint.

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The curious case of alleged third page of the Will
32. For what has been discussed hereinabove, it is but evident that the Will in question
is besieged by multiple suspicious circumstances, which have not been cleared; rather
every suspicious circumstance is more baffling than the other. Even this is not the end
of the matter.
33. There remains yet another, and perhaps the most confounding part of the matter,
which leaves nothing to doubt that the prayer for probate of the Will in question could
only be declined. It is the curious case of alleged third page of the Will in question and
the vacillating stand of the Appellant in that regard. This aspect, perforce, needs a little
elaboration as infra.
33.1. As noticed in the preceding paragraph 13 and its sub-paragraphs, during the
course of trial, on 24.03.2008, the Respondent No. 1 moved an application Under
Section 151 Code of Civil Procedure seeking opportunity to further cross-examine the
Appellant. In this application, the Respondent No. 1, inter alia, attempted to raise a plea
relating to the alleged third page of the Will in question. This application was rejected
by the Trial Court on 25.03.2008, inter alia, with the observations that the story of this
third page, as coming on record for the first time cannot be believed, particularly when
nothing in that regard was asked in the cross-examination of PW-1.
33.1.1. Thereafter, the Respondent No. 1 filed another application seeking permission
to file her written statement and seeking condonation of delay. Again, the Respondent
No. 1 attempted to refer to the said third page of the Will, inter alia, with the following
submissions:
4. The Respondent No. 2 submits that due to her lack of knowledge about the
existence of the third-page of the purported Will and being all through assured
by the Petitioner that the Respondent No. 2 would get her share as per Will, the
Respondent No. 2 did not file objections at the initial stage.
5. The Respondent No. 2 submits that the purported Will in question was lying
in the custody of the Petitioner and she can only give proper clarification and
explanation about the handwritten portion thereon and with regard to the third-
page of the said Will, which the Petitioner did not produce before this Learned
Court with some ill-motive.
In reply to the aforesaid part of the application, the present Appellant stoutly denied the
existence of any third page of the Will and, inter alia, submitted as under:
4 . That para No. 4 of the application is wrong and hence denied. It is denied
that there is any third page of the Will, as alleged or otherwise. This Hon'ble
Court has already dealt with this false contention of the Respondent No. 2 vide
its order dated 11.04.2008. Even the perusal of the Will clearly reveals that the
Will is in two pages. The averments to the contrary are absurd, frivolous and
devoid of any merits. It may be appreciated that the Respondent No. 2 admits
that the Will, that is, the subject matter of the present petition, but owing to
her malafide intentions is now seeking to take self contradictory stand, which is
not permissible under law. It may be appreciated that the Respondent No. 2 is
an educated lady and the averments with regard to lack of any knowledge etc.,
is wrong and hence denied. It is denied that the Petitioner has given any such
assurances, as alleged or otherwise.

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The application so filed on behalf of Respondent No. 1 and another application filed on
behalf of Respondent No. 2 Under Order IX Rule 7 Code of Civil Procedure were decided
together by the Trial Court in its order dated 03.07.2008, inter alia, with the
observations that, 'the alleged 3rd page appears to be some another document and
prima facie it is not certainly 3rd page of the Will'.
33.1.2. Yet again, an application filed on behalf of Respondent No. 2 Under Order XI
Rule 12 and 14 Code of Civil Procedure seeking production of the same alleged third
page of the Will was rejected by the Trial Court by its order dated 23.08.2008, inter alia,
with the observations that the Respondent No. 2 had described the entire Will as forged
and fabricated so he 'cannot be allowed to take a contradictory stand that the third page
is genuine and other two pages are forged'. The Trial Court also observed that the claim
of the Appellant was only in respect of one immovable property and one bank account
and no claim had been made in respect of any movable property. The Trial Court further
went on to observe that 'even if it is presumed that deceased during her life time
distributed her personal belongings, cash and jewellery in accordance with the third page
then also that third page has now become useless because the distribution of the
movable assets took place during life time of the deceased whereas the Will has to take
effect after the death of the testatrix.'
33.2. Thus, in the Trial Court, at a late stage, the Respondents attempted to suggest,
rather persist, with the submission that there had been a third page of the Will but this
suggestion was specifically denied by the Appellant even with the allegation that the
said third page had been fabricated by the Respondents. The Trial Court accepted the
submission of the Appellant to the extent that no such third page existed. The Trial
Court even observed that distribution of movable assets of testatrix was complete
during her lifetime and the only subject-matter remaining was the immovable property
and the bank account.
33.3. In continuity with what has been observed hereinabove, we may also add that
prima facie, the suggestion about any such third page of the Will made by the testatrix
appears doubtful because the Will is question is drawn up in two pages; the testatrix
has specifically written in her own hand that the Will is so made in two pages; and the
document effectively ends at the bottom of the second page with signatures of testatrix
and two attesting witnesses.
33.3.1. However, all the observations and findings of Trial Court (as regards the
alleged third page of the Will in question) and even the prima facie impression given by
the document Ex. PW1/H against existence of any such third page of Will are shaken to
the core when we take into account the strange turnabout and volte-face of the
Appellant in the High Court, where it was asserted on her behalf that she had indeed
acted as per the "directions" of the testatrix in the said third page!
34. The above-noted strange shift in stand of the Appellant, where she asserted having
acted as per the said third page had its own background. As noticed, during the course
of trial, a fact surfaced that before filing the petition for probate, the Appellant had
made payment of a sum of Rs. 25,000/- to the daughter of the attesting witness PW-3;
and the Trial Court even observed that the possibility of this witness being bribed was
not ruled out. This very aspect was seemingly pressed again before the High Court by
the Respondents. While countering such contentions made on behalf of the Respondents
as also while asserting that the Respondent No. 1 was not fair in her conduct, the
Appellant asserted before the High Court that though this third page was a creation of
the Respondents but, she (the Appellant) had acted according to the desire of the

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testatrix as stated in the said third page. It was specifically stated on behalf of the
Appellant that payments were made by way of four cheques, in the sum of Rs. 25,000/-
apiece, in favour of the daughter of PW-3, the daughter of the Respondent No. 1 and
two sons of her own (the Appellant) 'in compliance with the directions in the said "3rd
page", which is a separate directive of the deceased de hors the Will'. It was further
asserted on behalf of the Appellant that she had 'faithfully acted upon the directions' set
out in the said third page and handed over the car to the daughter of Respondent No. 1
and even gave the jewelleries to the Respondent No. 1 herself! It was sought to be
argued on behalf of the Appellant that the said third page rather proves the validity of
the Will in question.
34.1. What has been noted hereinabove, being the entirely different stand of the
Appellant regarding the said third page, is specifically found in the written arguments
filed on her behalf in the High Court. The relevant part of such written arguments may
be usefully extracted as under:
1. That in the first place there is no challenge from either of the 2 Respondents
to the signatures and the hand writing of the Testatrix on the Will; indeed there
is sufficient admission of the validity of the Will in the following manner:
ADMISSIONS
(a) Respondent No. 2 files no objections to the Probate Petition.
(b) Respondent No. 2, who had been granted the license to reside in
the suit property, clandestinely attempts its alienation, constraining the
Petitioner to file a suit for injunction (Annexure A-14 on page 176 -
-- please see page 181 for the prayer), as per legal advice received
as against an Application for restraint in the Probate Petition itself.
Respondent No. 2 retaliates by committing a volte face and filing an
Application for permission to further cross examine the Petitioner with
regard to (i) the holograph portion of the Will, (ii) the existence of a
third page to the Will, (iii) doubting the fatherhood of the Petitioner
and (iv) establishing the extent of her rights in the suit property under
the Will.
The Application is dismissed vide Order dated 25.03.2008 (Annexure
A-7 on page 93) but the flip-flop stands of the Respondent No. 2 may
be noted to deny any credence to her contradictory submissions in the
instant Appeal and the contention of the existence of a 3rd page to the
Will tantamounting to the admission of the validity of the 2 paged Will
propounded by the Petitioner.
The so called "3rd page" is Annexure A-8 on page 97, which does
not form part of the Will but was signed separately by the Testatrix and
has indeed been acted upon to the benefit of, amongst others,
Respondent No. 2 herself and her daughter.
It is not comprehensible as to how then the Respondent's challenge the
Petitioner's issuance of the 4 Nos. cheques, all in the sums of Rs.
25,000/- apiece favouring Gen. Ahluwalia's daughter, Respondent No.
2's daughter and the Petitioner's 2 sons in compliance with the

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 directions in the said "3rd page", which is a separate directive of the
deceased de hors the Will.
Also in compliance with the said directives the Respondent No. 2's
daughter has been given the car belonging to the deceased by the
Petitioner after the demise of the deceased.
**** **** ****
12. That at the hearing R-3 relies upon a litany of FALSEHOODS in order to
advance her case against the Will, as set out hereunder:

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

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34.2. In paragraph 49 of the impugned judgment, the High Court noticed such a stand
of the Appellant, seeking to rely on the very same disputed third page of the Will and
observed that this third page was never produced by the Appellant; rather when the
Respondent No. 2 sought its production, the Appellant denied the same. The High Court
also observed that the said third page of the Will was never proved before the Trial
Court; and even if it was assumed to be existing, the suspicious circumstances were not
dispelled.
35. In our view, though the High Court has rightly observed that even if this third page
is assumed to be existing, it does not remove the suspicious circumstances but the High
Court has stopped short of going a little further and has not noticed that volte-face of
the Appellant regarding this third page tilts the preponderance of probabilities heavily,
rather conclusively, against her. Noteworthy it is that the said third page has not been
exhibited in evidence. The flip-flops of the Appellant regarding this third page compels
us to examine several of the possibilities concerning other assets of the testatrix.
35.1. As noticed, the Will in question (Ex. PW1/H) is drawn on two pages and is
complete in itself and does not leave any scope for any other codicil concerning the
estate of the deceased, particularly when bequeath has been made not only of the
immovable property and the bank account but also as regards the other assets of
testatrix in the residuary clause, which reads as under:
2 . I also direct that in the event of my acquiring any further movable or
immovable assets hereinafter or any other assets that I may have forgotten to
mention in the present Will the same shall devolve upon my daughter Mrs.
Kavita Kanwar.
35.1.1. Now, from the evidence on record and from the stand of the Appellant, there is

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little to doubt that there had been several other assets of the testatrix apart from the
said immovable property and the bank account. By virtue of the aforesaid residuary
clause, all such other assets are bequeathed to the Appellant. In the given scenario, two
serious questions perforce acquire immediate attention. One that while making the
application seeking probate, the Appellant did not divulge all other assets which were to
come in her hands by virtue of the said residuary Clause of the Will in question10.
Secondly, when there had not been any direction in the two page Will in question for
making payment to anyone or parting with any movable to anyone, what had been the
reason for the Appellant making payment to different persons, including her own sons,
the daughter of the attesting witness and the daughter of the Respondent No. 1 apart
from giving car to the daughter of the Respondent No. 1 and jewelleries to the
Respondent No. 1 (as alleged in the written submissions before the High Court). Both
these questions on the conduct of the Appellant only thicken the suspicious
circumstances surrounding the Will in question.
35.2. On the other hand, as soon as the possibility of existence of such third page
carrying the desire and directions of the testatrix about distribution of her other
movable property is taken into account11, the document Ex. PW1/H loses all its worth
because it cannot be said the testatrix executed the same after understanding the
meaning and purport of its contents. If she had the desire of distribution of movable
property in a different manner and to different persons (as alleged by the Appellant
before the High Court), the aforesaid residuary Clause would not have occurred in the
Will in question at all. Secondly, if it is assumed that the testatrix issued separate
directions about distribution of her assets de hors the Will then, the Will in question
ceases to be her last Will.
36. Hence, to cap all the suspicious circumstances, the aforesaid equivocal stand of the
Appellant, as regards the third page of the Will and her assertion of having acted in
accordance with the "directions" in the said third page of the Will, effectively knocks the
entire case of the Appellant down to the bottom. The suspicions arising because of the
facts and factors noticed hereinbefore, including the unnatural exclusion of the
Respondents from estate; uncertain and rather inexecutable stipulation about
construction by the Appellant for the purpose of the Respondent No. 1; active role
played by the Appellant in execution of the Will and yet seeking to avoid the factum of
her role by incomplete and vague statements; and the witnesses having contradicted the
Appellant on material particulars etc., have not only gone unexplained but are
confounded beyond repair with such vacillating stand of the Appellant regarding the
said third page of the Will of the testatrix.
Summation
3 7 . The discussion foregoing is sufficient to find that thick clouds of suspicious
circumstances are hovering over the Will in question which have not been cleared;
rather every suspicious circumstance is confounded by another and the curious case of
the alleged third page of the Will effectively and completely demolishes the case of the
Appellant. Put differently, it is difficult to be satisfied that what is literally coming out of
the document in question had been the last wish and desire of the testatrix as regards
succession of her estate. On the contrary, we find enough and cogent reasons to affirm
the material findings of the Trial Court and the High Court that it cannot be said that the
testatrix executed and signed the document in question as her Will after having
understood the meaning, effect and purport of the contents.
3 8 . The result, inevitable, is that this appeal deserves to be dismissed. With the

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concurrent findings having been affirmed and when the Appellant is found wanting in
forthrightness at various stages of proceedings, costs ought to follow the result of
dismissal of this appeal.
Conclusion
39. Accordingly, and in view of the above, this appeal fails and is, therefore, dismissed
with costs quantified at Rs. 50,000/- (rupees fifty thousand), payable by the Appellant
equally to the Respondent No. 1 and Respondent No. 2.

1 Hereinafter also referred to as 'the contested Will' or 'the Will in question' or the
'document in question'.
2 The Respondent No. 1 of the present appeal was on record as Respondent No. 2 in the
Trial Court and High Court. Therefore, reference to her in the impugned judgments and
other proceedings shall appear with description as 'Respondent No. 2'. However, for
continuity of expressions in this judgment, she is referred to as 'the Respondent No. 1'
with contextual clarification wherever required.
3 Similar to FN 2 ibid., the Respondent No. 2 of the present appeal was on record as
Respondent No. 3 in the Trial Court and High Court. Therefore, in the impugned
judgments and other proceedings he is described as 'Respondent No. 3'. However, for
continuity of expressions in this judgment, he is referred to as 'the Respondent No. 2'
with contextual clarification wherever required.
4 Hereinafter also referred to as 'the Succession Act'.
5 Though in the affidavit-in-evidence, the Appellant had mentioned that her mother had
written the introduction portion as also the concluding portion on the Will.
6 Hereinafter also referred to as 'the Evidence Act'.
7 The referred provisions of Code of Civil Procedure read as under:
Order VIII Rule 10:
"10. Procedure when party fails to present written statement called for by
Court.-Where any party from whom a written statement is required Under Rule 1 or
Rule 9 fails to present the same within the time permitted or fixed by the Court, as the
case may be, the Court shall pronounce judgment against him, or make such order in
relation to the suit as it thinks fit and on the pronouncement of such judgment a decree
shall be drawn up."
Order XIV Rule 1(6): "1. Framing of issues.-
*** *** ***
(6) Nothing in this Rule requires the Court to frame and record issues where the
Defendant at the first hearing of the suit makes no defence."
Order XV Rule 2(1):
"2. One of several Defendants not at issue.- (1) Where there are more Defendants
than one, and any one of the Defendants is not at issue with the Plaintiff on any
question of law or of fact, the Court may at once pronounce judgment for or against
such Defendants and the suit shall proceed only against the other Defendants.
*** *** ***"
8 The referred provisions of Code of Civil Procedure read as under:
Order VIII Rule 5(2)
"5. Specific denial.-
*** *** ***

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(2) Where the Defendant has not filed a pleading, it shall be lawful for the Court to
pronounce judgment on the basis of the facts contained in the plaint, except as against
a person under a disability, but the Court may, in its discretion, require any such fact to
be proved.
*** *** ***"
9 See, for example, Narinder Singh Rao v. Air Vice-Marshal Mahinder Singh Rao
and Ors. MANU/SC/0273/2013 : (2013) 9 SCC 425, where the testatrix had bequeathed
property in excess to her share and this Court held that the bequest has to be treated
only to the extent of the share held by the testatrix.
10 In paragraph 8.2 hereinbefore, we have reproduced the major contents of the
application seeking probate with its Annexure-B wherein, only the said immovable
property and the amount lying in the bank account were stated; and in paragraph 12 of
the application, the Appellant mentioned the immovable property as the only asset likely
to come in her hands with the referred stipulations.
11 As per the submissions made before the High Court, the Appellant indeed carried out
the directions contained in such third page of the Will.
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