Gulshan Kumar Anand vs State

V.K. Jain, J.—This is a petition for grant of Letter of Administration with the Will annexed to it, in respect of the estate of late Shri Boota Mal Anand, father of the Petitioner, who died on 30.5.1979. It is alleged in the petition that late Shri Boota Mal Anand had executed a Will dated 28.7.1978 and the Petitioner is the sole beneficiary under the aforesaid Will. The Testator Shri Boota Mal was survived by 06 legal heirs including the Objector Shri Pishori Lal. The objections to the petition have been filed only by Shri Pishori Lal, other son of the Testator. He has denied the Will set up by the Petitioner and has further stated that the alleged Will must have been obtained under undue influence and pressure and it is contrary to the earlier expressed desire of the Testator. It is also alleged that at the time of alleged Will late Shri Boota Mal was seriously ill and was not of a sound disposing mind. It is also claimed that signature does not appear to be that of Shri Boota Mal.

It is also alleged by the Objector that Shri Boota Mal had no authority under the Will of his wife late Smt. Lakshmi Devi, who was the owner of the house subject matter of the Will set up by the Petitioner and who had divided the same in equal shares between the Petitioner and the Objector. It is claimed that Shri Boota Mal had only a life estate in this property.

The following issues were framed on the pleadings of the parties:

Did Boota Mal execute the Will propounded by the Petitioner? - OPP

In case Issue No. 1 is proved, was the Will obtained under undue influence and pressure? - OPR

If Issues No. 1 & 2 are decided in favour of the Petitioner, is the Will not binding and inoperative as stated in para 3 of the Written Statement of Respondent? - OPR

Relief.

Issue No. 3

The Objector Pishori Lal had filed Probate Case No. 33/79 seeking probate of the Will dated 11th December, 1968 alleged to have been executed by his mother late Smt. Lakshmi Devi who was the owner of the house subject matter of the Will executed by late Shri Boota Mal. Both the petitions were decided by this Court vide judgment dated 23.4.1985. The learned Single Judge, who decided the petitions was of the view that the Will of late Smt. Lakshmi Devi, created only a life estate in favour Shri Boota Mal and after his death the house had to go to Gulshan Kumar and Pishori Lal sons of late Smt. Lakshmi Devi in terms of para 6 of her Will. He was of the view that the Will executed by Shri Boota Mal on 28.7.1978 which was to take effect after his death has to be ignored since he was not competent to make a Will with respect to the property left by his wife late Smt. Lakshmi Devi in his hands. The learned Single Judge therefore directed grant of probate to Shri Pishori Lal and dismissed this petition. An appeal was filed by the Petitioner Gulshan Kumar against the aforesaid decision of the learned Single Judge and a Division Bench of this Court vide order dated 29.8.2008 allowed the appeal and set aside the judgment observing that the Probate Court is concerned only with the decision as to whether the Will is valid. It was further observed that even if the Will executed by Shri Boota Mal is proved in trial and a letter of administration is granted it still remained to be seen whether the person concerned gets the estate or not, for which the determination factor would be as to whether Shri Boota Mal had only a life estate in the property in question. The Division Bench was of the view that such a question could be decided only in a regular Civil Suit which was already pending. The matter was remitted back to the learned Single Judge with the aforesaid observations.

The learned Single Judge vide judgment dated 5.11.2001 granted probate in respect of the Will of Smt. Lakshmi Devi and dismissed the present petition on the ground that Shri Boota Mal had neither any authority nor any locus to bequeath the property in question. The learned Single Judge also concluded that Shri Boota Mal was given life interest in the estate left by Smt. Lakshmi Devi which was to devolve upon two sons after his death, in the manner mentioned in para 06 of the Will and therefore he could not have bequeathed properties in question in the manner he liked. The judgment dated 5.11.2001 was challenged by the Petitioner Gulshan Kumar and the appeal filed by him was allowed by a Division Bench of this Court vide judgment dated 29.8.2008. The Division Bench was of the view that in respect of the Will executed by Shri Boota Mal, only question to be examined was as to whether he had executed the Will or not and that probate in respect of both the Wills i.e. the Will executed by late Smt. Lakshmi Devi as well as the Will executed by late Shri Boota Mal could also have been given, if they were proved. The matter was remanded back to this Court to decide the limited question as to whether Will dated 28.11.1978 purportedly executed by late Shri Boota Mal was validly executed. In view of aforesaid decisions of DB this issue does not survive any more. The issue is therefore struck off.

Issues No. 1 & 2

The Petitioner has examined one witness Shri Tehal Singh though he himself did not enter in the witness box. The Objector came in the witness box but did not produce any other witness.

PW-1 Shri Tehal Singh is the attesting witness of the Will alleged to have been executed by late Shri Boota Mal. He has stated that he knew Shri Boota Mal Anand and that the Will Exh. PW-1/1 was signed by him as an attesting witness. According to him this Will was executed by Mr. Boota Mal Anand in his presence and in presence of other attesting witness Shri Maan Singh who also signed the Will in his presence. He has identified the signature of Shri Boota Mal at point ''B'' and that of Mr. Maan Singh at point ''C''. He has also identified his own signature at point ''A'' on the Will Exh. PW-1/1. During his cross examination no suggestion was given to him that the Will Exh. PW-1/1 does not bear signature of Shri Boota Mal Anand or signature of this witness though it was suggested to him that he attested the Will at the instance of Petitioner Shri Gulshan Kumar.

In his deposition the Objector Shri Pishori Lal has stated the letter Exh. RW-1/1 - RW-1/9 are signed by his father Shri Boota Mal Anand. He stated that he had seen his father writing and signing from whom he had received such letter. He has further stated that to his knowledge his father did not execute any Will and no such Will was mentioned to him by his father when he met him about 7-8 months before his death. He also stated that his father was not keeping good health right from 1977; his eye-sight had become very weak and he was confined to bed for about one year before his death. He however, did not claim that the Will Exh. PW-1/1 does not bear signature of his father at point ''B''. He stated that at the time of his death his father was residing with Petitioner Shri Gulshan Kumar and also admitted that his father was having sound disposing mind though he was hard of hearing. He also stated that his father had complained to him a number of times that he was not getting cordial treatment from the Petitioner but he declined to come and reside with him and informed him that he would like to remain with the Petitioner.

The burden of proving that the Will was validly executed and is a genuine document is no doubt on the propounder of the Will. He is required to prove that the Testator had signed the Will and had put his signature out of his own free Will. He is also required to prove that the Testator, at the time of execution of the Will, had a sound disposition of mind and was in a position to understand the nature and effect of what he was doing. If sufficient evidence in this behalf is produced by the propounder of the Will, the onus cast on him stands duly discharged.

The execution of an unprivileged Will is government by Section 63 of Indian Succession Act which, to the extent it is relevant, provides that the Will shall be attested by two or more witnesses, each of whom has seen the Testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the Testator, or has received from the Testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the Testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Section 68 of Evidence Act, to the extent, it is relevant, provides that if a document is required by law to be attested, it shall not 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 subject to the process of the Court and capable of giving evidence. Since the Will is a document required by law to be attested by at least two witnesses, the Petitioner could have proved it by producing one of the attesting witnesses of the Will.

Another requirement of law is that if there are suspicious circumstances surrounding the execution of a Will, the onus is on the propounder to explain those circumstances to the satisfaction of the Court, before the Will is accepted as a genuine document. The suspicious circumstances may be many such as (i) the signature of the Testator may be shaky and doubtful or different from his usual signatures; (ii) the mental condition of the Testator may be feeble and debilitated at the time of the execution of the Will; (iii) the disposition may be such as is found to be unnatural, improbable or unfair in the light of relevant circumstances, such as exclusion of natural heirs without any reason (iv) the propounder may take a prominent part in the execution of the Will; (v) the Will may not see the light of the day for long time; (vi) the Will may contain incorrect recital of essential facts. Of course, the suspicious circumstances, alleged by a person who disputes the genuineness of the Will, ought to be real and germane and not the imagination of a doubting mind amounting to conjecture or mistrust.

It is also a settled proposition of law, fraud, coercion or undue influence is alleged in execution of a Will, the burden of proving the same would be on the person by whom such a plea is set up Madhukar D. Shende Vs. Tarabai Aba Shedage, , Sridevi and Others Vs. Jayaraja Shetty and Others,

The testimony of PW-1 Tehal Singh has been assailed by the learned Counsel for the Objectors on the grounds that a) he knew nothing about family of the Testator or about the contents of the Will; b) he has not explained at whose instance he signed as an attesting witness; and c) he did not give correct age of the Testator.

The first question which comes up for consideration is as to whether the Will Ex.PW-1/1 bears signature of late Shri Boota Mal Anand or not. According to PW-1 Tehal Singh, this Will was signed by Shri Boota Mal Anand in his presence and in the presence of other attesting witnesses Shri Maan Singh. He has identified the signature of Shri Boota Mal Anand at point ''B'' on the Will. There is no evidence on record to controvert this part of the deposition of Shri Tehal Singh. No evidence has been produced by the Objectors to prove that the Will Ex.PW-1/1 does not bear signature of Shri Boota Mal Anand. When the Objector Pishori Lal, who is the only Objector to enter the witness-box, was examined, he stated that he had seen his father writing and signing and was in a position to identify his hand-writing. But, he did not utter a word about the purported signature of Shri Boota Mal Anand on the Will Ex.PW-1/1 and did not claim that these signatures are not of his father. During cross-examination of PW-1 Tehal Singh, no suggestion was given to him that the Will Ex.PW-1/1 does not bear signature of Shri Boota Mal Anand. Rather it was suggested to him that he attested the Will at the instance of the Petitioner Gulshan Kumar. Giving this suggestion implies that the Objectors admit attestation of the Will by Shri Tehal Singh though according to them, he did it at the instance of the Petitioner. A perusal of the decision of this Court dated August 29, 2008 in FAO(OS) 3/2002 and FAO(OS) 4/2002 would show that there was no serious dispute about the factum of the Will dated 28th November, 1978 executed by Shri Boota Mal Anand, father of the parties and the entire dispute was as to whether he had right to execute the said Will. Shri A.P.S. Ahluwalia, Senior Advocate, who is representing the Objector before this Court, had also represented them in the aforesaid appeals. In these circumstances, I see no reason to disbelieve the disposition of Shri Tehal Singh PW-1/1 as regards signature of Shri Boota Mal Anand on the Will Exh. PW-1/1.

As regards the discrepancies pointed out in the deposition of Tehal Singh, the only material discrepancy I find is that he had stated the age of the Testator to be about 70 years though he was aged about 88 years at the time of execution of the Will. It has come in the deposition of Tehal Singh that he could not tell the exact age of the Testator but he ''might be'' about 70 years of age at the time of making the Will. This witness was examined in the Court on 06th December, 1990 and at that time his age was 79 years, which would mean that he would be aged about 67 years at the time the Will Ex.PW-1/1 purports to have been executed. Though the witness claimed that he knew Shri Boota Mal Anand, no question was put to him in his cross-examination to elicit as to how he know the deceased Testator and what was the nature of relationship between him and the Testator. The use of the expression "might be about 70 years of age", by Shri Tehal Singh indicates that he was not aware of the age of the Testator at the time Will Ex.PW-1/1 purports to have been executed. The expression used by the witness clearly indicates that he was giving the age of the Testator only by proximation. It is quite possible that from his appearance Shri Boota Mal Anand could be mistaken to be aged about 70 years if his correct age was not known to the witness. There is no evidence on record to indicate that at the time the Will Ex.PW-1/1 purports to have been executed, Shri Boota Mal Anand appeared to be much more than 70 years old. Therefore, failure of the witness to give correct age of the Testator, by itself, is not sufficient to reject his testimony when scrutinized in the light of other facts and circumstances of the case. Ignorance of this witness about the family of late Shri Boota Mal Anand does not necessarily mean that the Will Ex.PW-1/1 is not executed in his presence. As noted earlier, no question was put to the witness to elicit information about extent of his closeness to the Testator or the nature of relationship between them. He was not asked as to how he knew late Shri Boota Mal Anand and who had called him to the place where the Will was executed. Therefore, it is quite possible that though the Will was executed in his presence, he did not know much about the family of late Shri Boota Mal Anand. A person can be known to another person, but, may still not be knowing much about his family. In fact, he was not even asked to where the Will Ex.PW-1/1 was executed. I also notice that this witness could not tell with whom late Shri Boota Mal Anand was living. But again, unless the relationship of the witness with late Shri Boota Mal Anand was quite close, he is not expected to know with whom the Testator was living at the time of execution of the Will. The address of Shri Tehal Singh recorded on the Will Exh. PW-1/1 is house No. 36/90 East Patel Nagar whereas the Testator admittedly was residing in house No. 34/3 East Patel Nagar therefore it is quite possible that being a resident of the same locality he was well known to the Testator and therefore was requested by him to attest his Will. As regards omission of witness to tell as to whose instance he signed as an attesting witness, I find that no question was put to him in this regard despite his affirming that he had signed as an attesting witness and the Will was executed in his presence and his denying the suggestion that he had attested the Will at the instance of the Petitioner and claiming that the Petitioner Gulshan Kumar was not present at the spot when the Will was executed. The Objector has not attributed any motive to this witness to depose against him or to depose in favour of the Petitioner. No connection between him and the Petitioner Gulshan Kumar has been established.

The following circumstances were pointed out by the learned Counsel for the Objectors in support of his contention that the Will Ex.PW-1/1 was not executed by late Shri Boota Mal Anand: a) As per the Will Ex.PW-1/1, he had four sons, whereas as per the Will which his wife had executed earlier, they had five sons; b) the wife of Shri Boota Mal Anand had earlier demised this house to both Objector Pishori Lal and the Petitioner Gulshan Kumar and there could be no reason for the father to exclude Pishori Lal, particularly when the house subject matter of the Will Ex.PW-1/1 was initially allotted to Shri Pishori Lal, who had transferred it to his mother; c) the mother wanted to divide her property in favour of both her sons and there was no reason for the father to go against the wish of his wife and bequeath the house solely to the Petitioner; d) the Will does not indicate any reason for the Testator to deviate from the wish of his wife and disinherit the Objector Pishori Lal.

A perusal of the Will executed by late Smt. Lakshmi Devi, wife of late Shri Boota Mal Anand, shows that they had five sons, namely, Jagdish Lal, Pishori Lal, Gulshan Kumar, Ashok Kumar and Hari Krishan Lal, out of whom Hari Krishan Lal had pre-deceased them and was survived by three sons, namely, Darshan Kumar, Harish Chander and Abnash and, whereas Ashok Kumar was missing. Assuming that late Shri Boota Mal Anand had five sons, as mentioned in the Will of his wife, the omission to mention Ashok Kumar would be immaterial since he was missing even at the time of execution of the Will by Smt. Lakshmi on 11th December, 1968 and he being unmarried and having not been heard of for more than seven years, was presumed to be dead. There was reason to mention the name of Shri Harikishan, pre-deceased son of the Testator, because he was survived by three sons at the time Smt. Lakshmi Devi executed her Will and, therefore, they would be the legal heirs of both Lakshmi Devi as well as Shri Boota Mal Anand under the law of succession applicable to them, whereas Ashok Kumar had not left any Class-I legal heirs, except his mother who had already died by the time Will was executed by late Shri Boota Mal Anand.

In the case before this Court, I find that there were good reasons for the Testator to exclude him from his estate. Admittedly, the Petitioner was living with late Shri Boota Mal Anand whereas Pishori Lal was residing as well as doing business of jewellery in Indore for many many years before he executed the Will Ex.PW-1/1. The letter (Ex.P-1/A) dated 02nd May, 1962 written by late Shri Boota Mal Anand to the Objector Pishori Lal at Indore, where the Objector was residing and doing business, does indicate that at that time late Shri Boota Mal Anand wanted to give the house subject matter of the Will Ex.PW-1/1 to the Objector Pishori Lal, Petitioner Gulshan Kumar and their third brother, if he was alive. But, another letter filed by the Objectors clearly shows that the Objector used to pester his father for money and later on, the relationship between the Objector and the Testator had become strained and unpleasant. In the letter (Ex.P-7/A), the Testator stated as under:

My dear when you will to Delhi, you will be shown the Khata. Now there is no exchange between us. Under compulsion, the relationship of a father and a son has been severed from my side. In the present life, this cannot be rectified. Hereafter you should not write me anything about Gulshan.

It appears from this letter that the Objector Pishori Lal had been asking for money from his father and the Testator was totally unhappy with him. He went to the extent of saying that he had severed the relationship of father and son from his side and same could not be rectified in his lifetime. It also indicates that the Objector Pishori Lal had been writing to the Testator against the Petitioner Gulshan Kumar and the Testator had desired that he (the Objector) should not write anything against Gulshan Kumar to him. Had the relationship between the Objector Pishori Lal and the Testator been cordial, the Testator would not have gone to the extent of using such harsh words in his letter to the Objector Pishori Lal. Letter Ex.P-6/A written by the Testator to the Objector Pishori Lal on 28.2.1966 does contain come criticism of the Petitioner Gulshan Kumar. It was stated in this letter that Gulshan Kumar had left for Mussourie with his children and the Testator and his wife were alone in the house. He did not find either any comfort or any discomfort in their absence and a grievance was expressed that the Testator wanted to go to Bombay, but were not able to do so since Gulshan Kumar was going to Haridwar. However, he also wrote that neither he nor his wife had any trouble in respect of food and whenever Gulshan Kumar came back from Haridwar, the Testator would go to Bombay for a week. It was also stated in this letter that Gulshan would realize after their death as to in which direction he was drifting and a wax had been painted on his eyes. No doubt, this letter is somewhat critical of Gulshan Kumar, but it does not indicate any serious dispute between the father and the son. In any case, the letter Ex.P-7/A clearly indicates that the annoyance of the Testator with Gulshan Kumar had come to an end by the time that letter was written and that is why the Testator did not want the Objector to write anything to him against Gulshan Kumar.

It can hardly be disputed that the mother of the parties, wanted this house to go to the Petitioner and the Objector in equal shares. It also cannot be denied that exclusion of a son would in the absence of facts and circumstances which could persuade the Testator to take such a step, would be a suspicious circumstance, which needs to be dispelled by the propounder of the Will, but, this alone without anything more may not justify outright rejection of the Will. It was observed by Supreme Court in Bharpur Singh and Others Vs. Shamsher Singh, that though deprivation of due share to the natural heirs by itself may not be a suspicious circumstance, it is one of the factors which is taken into consideration by the Courts before granting probate of a Will.

It was observed by Supreme Court in Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs. and others, that circumstances of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and, therefore, the natural heirs would be debarred in every case of Will. Of course, in some cases, they may be fully debarred, whereas in some cases, debarring may be partial.

In Uma Devi Nambiar and Others Vs. T.C. Sidhan (Dead), Supreme Court was of the view that mere depriving the natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession.

The reasons which could persuade the Testator to exclude a natural heir, need not necessary be disclosed in the Will, and it is very much open to the propounder of the Will to establish such circumstances during probate proceedings.

If the Testator was annoyed with Gulshan Kumar/or was favourably inclined towards the Objector, nothing prevented him from bequeathing the whole of the house to the Objector Pishori Lal, but no such course of action was adopted by him. If the Objector was unhappy with Gulshan Kumar, he would have either disposed of the Patel Nagar house and shifted to Indore to live with the Objector or would have asked Gulshan Kumar to leave his house. The Testator however, continued to live with Gulshan Kumar and there is no credible evidence of the relationship between the Petitioner Gulshan Kumar and Testator Shri Boota Mal Anand being strained at the time the Will Exh. PW-1/1 purported to have been executed. In his cross examination the Objector Pishori Lal has stated that when his father complained to him against Gulshan Kumar he had written to him to come to him but, the Testator informed that he would like to remain with Gulshan Kumar. Had the relations between the Testator and the Petitioner been unpleasant, there could be no reason for him to turn down the offer made by the Objector.

In my view it is rather natural for a father to bequeath his house to the son who has been living with him and who has served him in his advanced age for many years. The wife of the Testator expired on 1.2.1970 as is noted in the Will Exh. PW-1/1. The Testator executed the Will on 28.7.1978. It is thus obvious that for more than 8 years before his death the Testator was being served by the Petitioner Gulshan Kumar. The Objector, who was settled in Indore, was engaged in his business of jewellery there, was not looking after the Testator during that period and was not providing any emotional, physical or financial support to him. The desire of a father to reward the son who is living with him and providing him the support he needs at such an advanced stage of his life needs to be recognized and appreciated from the point of view of the father, who has already lost his life partner and who naturally looks towards the son living with him for his care and comfort. These circumstances coupled with the annoyance of the Testator with the Objector Pishori Lal as recorded in the letter Exh. P-1/7/A, appear to be the reason why he chose to bequeath this sole house to the Petitioner Gulshan Kumar to the exclusion of his other legal heirs.

The Objector Pishori Lal has not filed any letter written to him by his father after 1967. The letter Exh. PW-1/7 which appears to have been delivered by hand does not bear any date. If the relations between the Objector and his father remained cordial till the death of the Testator, he must have written letters to him between 1967 and 1978. No letter written during this period has however been filed by the Objector, which indicates that either the Testator did not write to the Objector Pishori Lal for more than 10 years prior to his executing the Will Exh. PW-1/1, or the letters written by him were not palatable to the Objector. The letters Exh. P-1/A to P-8/A filed by none other than the Objector Pishori Lal himself indicate that the Testator was in the habit of writing letters to Pishori Lal. Therefore, the failure of the Objector to file any letters written to him between 1968 and 1978 give rise to an inference that their relations were not cordial and that is why father of Testator did not write to him or the letters written by him were not charitable to the Objector.

It was also contended by the learned Counsel for the Objectors that late Shri Boota Mal Anand was not in a sound state of mind and the letters written by him to the Objector would show that he had almost lost his eyesight. The very fact that the Testator wrote the letters Exh. P-1/A to P-8/A despite having lost some vision by that time shows that not only he was in a sound state of mind but he was also in a position to read and write, at the time he wrote these letters to the Objector. The expressions used in the letters Exh. P-1/A to P-8/A do not indicate even a feeble state of mind, not to talk of an unsound state of mind. More importantly, in his cross examination, the Objector himself stated that his father was having sound disposing mind though he was hard of hearing. There is no independent evidence of late Shri Boota Mal Anand being hard of hearing and no such disability is indicated in the letters written by him to the Objector. In any case, if he was in a sound state of mind, at the time he executed the Will Exh. PW-1/1, his being a little bit of hard hearing would be immaterial.

It was contended by the learned Counsel for the Objectors that the other attesting witnesses of the Will have not been examined. As noted earlier Section 68 of the Evidence Act requires one of the attesting witnesses to be examined to prove the execution of a Will. It was therefore not obligatory for the Petitioner to examine the other attesting witnesses and no adverse inference against him can be drawn on account of his not producing this in the witness box. The failure of the Petitioner to examine the other attesting witnesses could have been material had the testimony of PW-1 Shri Tehal Singh been found tainted, shaky or unreliable. But, if the testimony of the sole attesting witness examined by the propounder of the Will is found to be creditworthy and reliable and is not impeached during cross examination, failure to examine the other attesting witnesses would not be taken adversely to him.

It was also contended by the learned Counsel for the Objectors that the Sub-Registrar was not examined to prove that the Testator was in a sound state of mind when he executed the Will. Section 114(e) of the Evidence Act provides that the Court may presume that the judicial and financial acts have been regularly performed. Though the above referred statutory presumption is rebuttable, no evidence has been led by the Objector to rebut this presumption of law. As a part of his official duty, the Sub-Registrar is required not only to satisfy himself about the identity of the executants of the document but also about the document having actually been executed by the executant. Therefore, the presumption is that before registering the Will the Sub-Registrar had duly satisfied him in this regard. It was held by Supreme Court in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, Gurdial Kaur and Ors. v. Kartar Kaur and Ors. 119 PLR 524 (SC) and P.P.K. Gopalan Nambiar Vs. P.P.K. Balakrishnan Nambiar and others, registration of a Will would be prima facie evidence of its genuineness though that by itself is not sufficient to dispel all suspicious circumstances surrendering the Will without submitting the evidence or registration to a cross examination. In the case before this Court there is no evidence of registration having been done in an irregular, perfunctory or casual manner and there is nothing to indicate that Sub-Registrar, before registering the Will did not satisfy himself about identify of the Testator or due execution of the Will by him. No doubt there may be cases where registration may take place without the executants really knowing the nature of the act being done by him but, in the case before this Court there is no circumstance from which such an inference can possibly be drawn.

It was also contended by the learned Counsel for the Objectors that the Petitioner himself took an active part in execution of the Will and this by itself is suspicious circumstance, which the Petitioner did not bother to dispel in this regard. It was pointed out that the Petitioner chose not to enter the witness box and therefore did not subject himself to the test of cross examination. It was observed by Supreme Court in Pentakota Satyanarayana and Others Vs. Pentakota Seetharatnam and Others, that even active participation by the propounder/beneficiary in the execution of the Will by itself is not sufficient to create doubt either about the testamentary capacity or the genuineness of the Will. However, in the present case there is absolutely no evidence of the Petitioner having actively participating in execution of the Will Exh. PW-1/1 as noted earlier the attesting witness has denied having attested the Will at the instance of the Petitioner and there is no evidence of the witness being in any manner linked to or being close to the Petitioner.

The learned Counsel for the Objector, during the course of his arguments, relied upon Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr. (supra) Ramchandra Rambux Vs. Champabai and Others, Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, , Ramesh Dutt Salwan v. State 1988 RLR 387 and Babu Singh and Others Vs. Ram Sahai @ Ram Singh,

In the case of Rani Purnima Debi (supra), the Testator had bequeathed his entire property to his nephew subject to his maintaining the widow and sister of the Testator. The Will was challenged on a number of grounds including that it was not duly and validly executed and attested, the Testator had no sound disposing mind at the time of execution of the Will and the Will was outcome of undue influence and coercion exercised by the legatee. The High Court accepted genuineness of the Will executed in favour of the Respondent. It was noticed by the Supreme Court in the appeal filed by the widow of the Testator, that relations between the Testator and his wife and sister were good. The Court therefore, expected something better than what was provided in the Will for those two ladies. It was noticed that no amount was specified to be paid to the ladies as maintenance and no charge had been created on the properties left by the Testator. It was also noticed that the propounder had taken part in the execution of the Will and the signature of the Testator did not appear to be his usual signature. It was also proved in the evidence that the Testator used to sign blank papers for use in his court cases and such papers could be in possession of the lawyer, who had appeared as a witness to prove the Will and therefore, it was possible to manufacture Will on the papers already signed by the Testator. It was also noticed that the signature of the Testator was not in the same ink and might not be with the same pen with which the body of the Will was written. There were as many as 16 attesting witnesses of the Will out of whom 03 were examined by the Respondent. None of those witnesses was found to be independent and none of them belonged to the place where the Will was executed. It was in these circumstances that the Court held that the Respondent had failed to dispel the suspicious circumstances which were present in the case. As regards registration of the Will, the Supreme Court was of the view that if the evidence as to registration shows that it had been done in a perfunctory manner, the Officer who had registered the Will did not read it over to the Testator or did not bring home to him that he was admitting the execution of the Will or did not satisfy himself in some other way that the Testator knew that it was a Will, execution of which he was admitting, the registration by itself would not be of much value. In the case before the Supreme Court, an application as made by a representative of the Testator and not by the Testator himself, before the Sub-Registrar for registration of the Will on commission. The Sub-Registrar sent a clerk to the place of the Testator for this purpose. The Supreme Court felt that justification given for issue of commission was not justified in law and also found that the Testator was quite hale and hearty. The clerk deputed by the Sub-Registrar to visit the place of the Testator was examined during trial. He simply stated that he had examined the Testator who had admitted execution of the Will. His evidence did not indicate that the Will was read over to the Testator before he admitted his execution. However, in the case before this Court, the beneficiary of the Will is none other than the son of the Testator, who admittedly was the sole family member of the Testator residing with him for many years before the Will was executed. As noted earlier there is no evidence of the Will having been registered in a perfunctory manner or the attesting witness to the Will being an interested person. The endorsement made on the Will clearly shows that the Will was read over and explained to the Testator in Hindi before it was signed by him. Considering the facts and circumstances of the case as discussed in the preceding paragraphs, this judgment can be of no help to the Objector.

In the case of Ramchandra Rambux (supra), it was found that though the Testator used to reside at Peepalgaon, the Will was executed at Hyderabad, where the beneficiary of the Will used to reside and carry on his profession. It was also found that one day prior to the date of the Will, the Testator was at a place 8 miles away from Peepalgaon, and the nearest railway station is 20 miles away from Peepalgaon. The Will was said to have been executed at about noon, and it was highly improbable that the Testator could have been present at the time the Will was stated to have been executed. There were some other suspicious circumstances surrounding the Will. Despite the property being considerable, the services of a layman were engaged instead of engaging the lawyer to draft the Will, the attesting witnesses appeared to be either friends or neighbours of the legatee, the document was inscribed on flimsy paper in Urdu alleged to have been dictated by the Testator in that very language. It was noted during the evidence that the Testator could not have read or write Urdu and his signature was in Modi script, which could not have been the case, had he been well-versed in Urdu. It was also noticed that the words seemed to be crammed in each line on the Will and the spacing between two lines tended to decrease, even though there was plenty of room for the signature of the Testator to be scribed lower down on the paper. It was also found that the Will was unnatural in the sense that the Testator had made no provision for a residence of his wife and made paltry bequests to his daughter and had given almost entire property to a distant relative who had neither been brought up by the Testator, nor had he looked after the Testator during his declining years. It was also found that the propounder of the Will had taken an active part in execution of the Will. It was in these circumstances that the Court referred to its observations in an earlier decision H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, to the effect that the propounder in dealing with proofs of Will would be called upon to show by satisfactory evidence that the Will was signed by the Testator, who at the relevant time was in a sound disposing state of mind and he understood the nature and effect of the dispositions and had put signature to the documents of his own free will. It was further observed that if there are suspicious circumstances, surrounding the execution of the Will, the Court would except legitimate suspicions to be completely removed before the document is accepted as the last Will of the Testator. It was also observed that where it appears that the propounder has taken a prominent part in execution of the Will, which confers substantial benefit on him that by itself is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the suspicion by clear and satisfactory evidence.

In the case of Jaswant Kaur (supra), the Will did not see the light of the day for about 12 years after it was executed. The Will was alleged to have been discovered after the Plaintiff''s evidence was over on August, 17 and the Defendant''s evidence was scheduled to be recorded on August, 24. The Will was alleged to have been discovered in the papers of the grandfather, without any explanation as to why the Defendant had suddenly thought of examining the papers of his grandfather during that particular period. Both the attesting witnesses were strangers and the attesting witness had to eventually admit that he knew nothing about Testator''s family or family affairs. There was contradiction in the testimony of the attesting witnesses as to whether the Will was executed in the business premises or in the residential premises of the Testator. Neither of the executors of the Will had been examined and the Will did not contain even a fleeting reference either to the Testator''s daughter or the widowed daughter-in-law or to the grand-daughter. It was in these circumstances that the Will was rejected by the Court.

In the case of Ramesh Dutt Salwan (supra), it was found that the witnesses were related to the beneficiary of the Will, different versions were given as to how the Will was in possession of Respondent No. 2 Shiv Dutt, the preparation and execution of the Will was shrouded in mystery, the attesting witness was not a resident of Delhi, the Will was purported to have been executed on 08th May, 1974 and presented for registration on 28th May, 1974, whereas according to the sole attesting witness, it was prepared, executed and registered on the same date, the passages from an earlier Will had been copied verbatim in the Will in question, in the earlier Will, the Testator had bequeathed one flat to the trust in her name, whereas the trust was deprived of that flat in the Will in question, the names of attesting witnesses were withheld for a long period and the propounder of the Will was unable to identify the signature of his mother on the previous Will. It was in these circumstances that the Court observed that the registration should be valid and proper registration and for registering office to become an attesting witness, he must have signed the document for the purpose of authenticating the signature of the executant and should have put his signature as an attesting witness with such an animus and that too in the presence of the executant.

In the case of Babu Singh (supra), Supreme Court, referring to its earlier decision in Savithri and Others Vs. Karthyayani Amma and Others, observed that the Court, while granting probate of the Will, must take into consideration all relevant factors and it must be found that the Will was product of a free Will and the Testator must have full knowledge and understanding as regards its contents. It was further observed that whenever a plea of undue influence is taken, onus would be on the Objector and not on the offender.

The facts of the case before this Court are altogether different. It cannot be said that there are suspicious circumstances surrounding execution of the Will Ex.PW-1/1 which do not stand explained. The exclusion of the Objector Pishori Lal and/or other legal heirs, in the facts and circumstances of this case, cannot be said unnatural, there is no evidence of the Petitioner having played an active role in execution of the Will, there is no evidence of any connection between the Petitioner and the attesting witness Shri Tehal Singh, the registration of the Will is not shown to be irregular or tainted in any manner and, therefore, none of the above-referred judgments apply to the facts and circumstances of the case before this Court. As noted earlier, there is a statutory presumption u/s 114(e) of Evidence Act that the official acts were regularly performed. Therefore, in the absence of any material to the contrary, it must necessarily be presumed that all the rules relating to registration of documents were followed by Sub-Registrar before the Will Ex.PW-1/1 was registered by him. I, therefore, see no reason to reject the Will Ex.PW-1/1 and hold that the same stands duly proved.

Though it has been alleged in the Objections that the Will was obtained under undue influence and pressure, no particulars of the alleged undue influence and/or pressure have been given in the Objections. Order 6 Rule 4 of CPC provides that that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence and any of other cases in which particulars may be necessary beyond such as are exemplified in the aforesaid forms, particulars shall be stated in the pleadings.

In Ranganayakamma and Another Vs. K.S. Prakash (D) by L.Rs. and Others, the Supreme Court referring to the provisions contained in Order VI Rule 4 of the CPC held that when a fraud is alleged, the particulars thereof are required to be pleaded. It was observed that when a contract is said to be voidable by reason of any coercion, misrepresentation or fraud, the particulars thereof are required to be pleaded.

In Ramesh B. Desai and Others Vs. Bipin Vadilal Mehta and Others, Supreme Court observed that Order VI Rule 4 of CPC requires that complete particulars of fraud shall be stated in the pleadings. A similar view was taken in Sangramsinh P. Gaekwad and Others Vs. Shantadevi P. Gaekwad (Dead) thr. Lrs. and Others,

Section 16 of Contract Act, 1872 defines ''undue influence'' as under:

1) A contract is said to be induced by ''undue influence'' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generally of the foregoing principle, a person is deemed to be in a position to dominate the will of another -

(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or

(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.

Nothing in the Sub-section shall affect the provisions of Section 111 of the Indian Evidence Act, 1872 (1 of 1872).

The onus is on the person pleading fraud, coercion or undue influence to prove facts which would constitute such an averment. In the case before this Court, no evidence has been produced by the Objector to prove that the Petitioner Gulshan Kumar was in a position to dominate the Will of his father and using that dominance, he was able to pressurize or persuade him to bequeath this house to him to the exclusion of his other legal heirs. As noted earlier, there is no evidence of the Testator suffering from mental incapacity. The Objector Pishori Lal himself has admitted that his father was in a sound state of mind. There is no evidence of the Petitioner Gulshan Kumar being in a position to exercise an undue authority over his father nor does the Will, in the facts and circumstances of this case, appear to be unconscionable. The exclusion of the Objector Pishori Lal, to my mind, was for the reasons that a) he was living separately from the Testator for many years and was doing his own business of jewellery in Indore; b) the relations between the Testator and the Objector Pishori Lal had become quite strained as is evident from the letter Ex.P-7/A and the Petitioner Gulshan Kumar was the only person who was living with the Testator and serving him for many years before his death, the wife of the Testator having died about 10 years before he executed the Will. The issues are, therefore, decided against the Objectors and in favour of the Petitioner.

Issue No. 4

In view of my findings on the issue No. 1 and 2, the Petitioner is entitled to grant of probate in respect of the Will dated 28th July, 1978, with copy of the Will annexed to it.

The petition is allowed. Probate of the Will dated 28th July, 1978 executed by late Shri Boota Mal Anand, with copy of the Will annexed to it, be issued to the Petitioner as per rules.