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Ashval Vaderaa vs Amitabh Narayan & Ors.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 22.01.2025

Judgment delivered on: 18.03.2025

+ FAO 283/2018

ASHVAL VADERAA .....Appellant

versus

AMITABH NARAYAN & ORS .....Respondent

Memo of Appearance

For the Petitioner: Mr. Ramesh Kumar, Learned Advocate

For the Respondent: Mr. Suraj Prakash, Learned Advocate for R-1

Mr. Dayan Krishnan, Learned Senior Advocate with Mr.

Ravikesh K. Sinha and Mr. Sanjeevi, Learned Advocates

for R-2 & R-4

CORAM:

HON'BLE MR. JUSTICE MANOJ JAIN

JUDGMENT

MANOJ JAIN, J

1. Question posed herein is two-fold.

(i) Firstly, whether Testatrix was in sound disposing mind at the

time of execution of her „Will”.

(ii) Secondly and more importantly, what should be the approach

of court in granting probate where Will is executed by the

maker, while admitted in a hospital.

2. Appellant takes exception to order dated 08.03.2018 passed by

learned Additional District Judge (West), Tis Hazari Courts whereby while

discarding the objections taken by the appellant herein, probate has been

granted to respondent No.1.

3. For the sake of convenience, I would refer to the parties as per their

nomenclature before the learned Probate Court.

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4. The probate petition was filed by respondent No.1-Mr. Amitabh

Narayan and, therefore, he would be referred to as „Petitioner‟ in the present

judgment. It was appellant Mr. Ashval Wadhera, who had filed objection in

the abovesaid Probate Petition and, therefore, he would be referred to as

„Objector‟. The Will is of Ms. Karuna Raj Vadheraa and she would be

referred to as‟ Testatrix‟ herein.

5. The averments made in the probate petition are very concise. These

can be summarized as under: -

a) Karuna Raj Vadheraa (Testatrix) was residing at E-24, E-25,

NDSE-II, New Delhi-110049. She had three sons and details of her

such sons and daughters-in-law are as under:-

S.

No.

Description Relationship with

Deceased

1 Shri Ashwal Vaderaa

(Objector)

(son)

2. Shri Asheesh Vaderaa (son)

3. Shri Kanishka Vaderaa (son)

4. Smt. Monica Vaderaa

(Wife of Shri Asheesh

Vaderaa)

(daughter-in-law)

5. Smt. Meetinder Vaderaa

Wife of Shri Kanishka

Vaderaa

(daughter-in-law)

b) The parents and the husband of Testatrix had pre-deceased her.

c) Testatrix executed her last Will on 05.02.2003 which was

registered with the Sub Registrar-III New, Delhi.

d) Such Will was stated to be her last Will and Testament.

e) Testatrix made reference of immovable and movable properties

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left by her and these are as under: -

LIST OF IMMOVEABLE PROPERTY LEFT BEHINDBY TESTATRIX

S.No. Description

1. E-24, N.D.S.E., Part – 11, New Delhi - 49

2. Co-ownership rights in lands at Lado Sarai at

5-A

Mehrauli Road, New Delhi:

(a) Khasra No.679/672/48/ 1, measuring 4

Bighas and

16 Biswas

(b) Khasra No.679/ 6721 48 / 2 measuring 15

Biswas

3. Property situated at Vaderaa Farms, Station

Road,

Garhi, Haryana Gurgaon, Haryana

LIST OF MOVEABLE PROPERTY

S.No. Description

1. F.D.R. in the Bank of Rajasthan Ltd. E-17, 1st

Floor,

South Extension 11, New Delhi

2. F.D.R. in the Central Bank of India M-2,

South

Extension 11, New Delhi

3. Bank Account in the Bank of Rajasthan Ltd.

E-17, 1

st

Floor, South Extension 11, New

Delhi

f) The Testatrix had appointed petitioner Mr. Amitabh Narayan as

Executor of the Will.

g) She expired on 24.04.2007.

h) The probate petition was filed which accompanied verification

of Mukul Bhatnagar and Dr. Vinod Rai who claimed that they were the

witnesses of the abovesaid Will and were present when the Testatrix

had affixed her signatures on said Will.

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6. Learned Trial Court directed issuance of citation to be published in

Hindustan Times besides the same to be affixed on the Notice Board of

Court and Collectorate concerned, where such immovable properties were

situated.

7. Notice was also issued to state through Chief Secretary.

8. Pursuant to such publications and citations, Objector Ashval Vaderaa

appeared and submitted his objections.

9. Asheesh Vaderaa and his wife Monica Vaderaa (respondents No.3

and 5 in probate petition) submitted written statements contending that they

had no objection to the grant of probate.

10. As far as Mr. Kanishka Vaderaa (respondent No.4 in probate petition)

was concerned, he, though, contended that he did not have any objection for

grant of probate but supplemented that they resided in E-24 and E-25, NDSE

part-II New Delhi which were adjoining and interconnected properties,

having a common staircase and such fact was not specified appropriately in

the petition. His wife Meetinder Vaderaa did not file any response.

11. As per Objector Mr. Ashval Vaderaa (appellant herein), the Will in

question was a forged and fabricated document. He asserted that at the

relevant time, when the abovesaid Will was allegedly executed on

05.02.2003, his mother i.e. Testatrix was rather in a hospital and was

unconscious and under the influence of drugs and medicines, administered

to her during her such hospitalization and, therefore, she was never in sound

disposing state of mind. Objector also wondered as to why his mother would

bequeath property to her other son i.e. Mr. Asheesh Vaderaa, with whom she

had civil and criminal litigation. It was claimed that Mr. Asheesh Vaderaa

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had been pursuing such litigation through Mr. Kamal Narayan, Advocate

and it was not believable that his son (petitioner Amitabh Narayan) would

be appointed by her as administrator or Executor of the Will.

12. It was also contended that no reason had been assigned in the Will for

unequal and unfair distribution and moreover, it was impossible to imagine

that Testatrix would execute Will for the benefit of one who had rather

humiliated her and entangled her in litigation.

13. Based on the pleadings, the learned Probate Court framed following

issues: -

“1. Whether late Smt. Karuna Raj Vadera duly executed Will dated

05.02.2003 in her sound disposing mind?

OPP.

2. Whether petitioner being Executor of Will dated 05.02.2003 of

Smt. Karuna Raj Vadera is entitled for grant of Probate as

claimed? OPP

3. Relief”

14. In order to prove his case, the petitioner examined PW-1-Dr. Vinod

Rai (attesting witness) and PW-2 Mr. Mukul Bhatnagar (attesting witness).

15. Indeed, such Will had been executed by the Testatrix, while being

admitted in Mool Chand Hospital. It looks perplexing and baffling to

comprehend, as to why such a vital fact, had not been divulged in the

probate petition.

16. Though there is no mandate of law that any such Will has to be

compulsorily registered but fact remains that Will in question was a

registered Will and as per the case of the petitioner, the concerned Sub-

Registrar, on a request made in this regard, had come to the abovesaid

hospital and registered the Will after due examination of the Testatrix.

17. Unfortunately, even such important aspect that the Sub Registrar had

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come to the Hospital has not been revealed in the probate petition.

18. Dr. S K Thakur was examined as CW1. He was, reportedly, working

as Consultant Gastroenterologist at Mool Chand Hospital in the year 2003

and Ms. Karuna Raj Vaderaa was stated to be under his care. When he

entered into witness box on 20.03.2017, he was shown one certificate dated

03.02.2003 (Ex-CW-1/1) which he admitted issuing.

19. It will also be important to mention that the petitioner did not examine

anyone from the office of Sub-Registrar.

20. The concerned Sub-Registrar was also not examined.

21. Mrs. Monika Vaderaa, then, sought permission to examine the

concerned official from the office of Sub-Registrar. Such request was

though opposed on the ground that it was an attempt to fill up lacuna in

evidence which was not permissible as the petitioner himself never

expressed any such wish, fact remains that such application was allowed on

01.11.2013 and, accordingly, R5W1 Mr. S K Sharma (LDC, Office of Sub

Registrar-III Asaf Ali Road, New Delhi) entered into witness box.

22. The Objector i.e. Mr. Ashval Vaderaa examined 5 witnesses.

23. These are OW-1 Ashval Vaderaa (Objector himself), OW-2 Anil

Dhawan (Nephew of Testatrix, who has been examined in order to

demonstrate that Testatrix was very serious and was not in her senses and

that she was not even able to speak as she was under the influence of

medication on 05.02.2003), OW-3 Virender Singh (for proving ITR of

Testatrix). OW-4 Mr. Sushil Kumar Kala (the official who has brought the

record pertaining to OMP No. 110/1987) and OW- 5 Mr. Digambar Singh

(official from Mool Chand Hospital, Lajpat Nagar).

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24. Learned Probate Court allowed the Probate Petition and rejected the

contentions of the Objector holding that there was nothing to show that there

was any gross illegality or irregularity with respect to execution and

registration of Will at the hospital. It held that merely because there was no

document to show as to when and how the application was made to the sub-

Registrar and how such official came at the hospital would be mere

procedural irregularity and would not affect the basic essence of the legality

of the registration of the Will at the hospital.

25. It also went on to hold that Testatrix, while being admitted in hospital

on 05.02.2003, was in sound disposing state of mind and physically stable. It

also held that merely because no reason had been assigned in the Will for

unequal distribution would not mean anything substantial. Thus, it rejected

the contentions of the Objector that the Will was forged and fabricated.

Relying upon the testimony of the concerned attesting witnesses and Dr.

Thakur, it returned findings with respect to the above said issues in favor of

the petitioner and held him entitled for probate to the above said Will, while

directing him to obtain requisite court fee and to submit administration

bond.

26. Such order dated 08.03.2018 is under challenge in the present appeal.

27. Mr. Ramesh Kumar, learned counsel for Objector submits that there

are inexplicable and mysterious circumstances surrounding execution of the

Will and that these have not been appreciated by learned Probate Court in

the desired manner. His prime contentions can be summarised as under: -

i. Testatrix remained admitted in two different hospitals. Her

initial admission was in Mool Chand Hospital from 31.01.2003

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to 07.02.2003. Since her condition did not improve and some

surgical intervention was required, she was, reportedly, shifted

to Ganga Ram Hospital where she remained admitted from

07.02.2003 to 14.02.2003. Such vital fact that Testatrix was in

hospital when the Will was executed has not even been

whispered in the entire petition. Nobody knows as to who got

her admitted. Nobody knows as to who bore her medical

expenses. Moreover, no such family member who remained with

her during her such hospitalization, has even graced the witness

box.

ii. Mr. Kumar, learned counsel for the Objector does admit that

even the Objector is her son but since she seems to have been

admitted by the other son, it was obligatory and mandatory for

such other son to have entered into witness box. Such other son

could have provided much needed clarity about medical

condition and sound disposing mind of the Testatrix.

iii. Nobody ever knew as to who had drafted the Will. It surfaced

only during the appeal that it was petitioner only who had

drafted the same. Being petitioner, there was no one who could

have prevented him to disclose the same during trial.

iv. There is nothing which may indicate that the Testatrix was in

sound disposing mind when the Will was allegedly executed by

her. The date of execution of such Will is 05.02.2003, but there

is no certificate of any doctor of Mool Chand Hospital

certifying that on said date i.e. on 05.02.2003 she was

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physically and mentally fit to execute a Will. Such Will is a

complicated one running into 12 pages and, therefore, keeping

in mind the fact that the Testatrix was admitted in the hospital,

all such suspicious circumstances should have been

appropriately clarified but nothing has been done to elucidate

those.

v. Neither the Executor of the Will nor the beneficiary of the Will

have entered into witness box. They must have been in the

Hospital with the Testatrix during the period of her

hospitalization and, therefore, it should have been apprised by

them as to why there was a sudden need of executing a Will,

when she rather required a surgical intervention.

vi. It is a case where the Sub-Registrar had rather, as projected,

come to Mool Chand Hospital for effecting registration of the

Will. For any such execution, happening at a place other than

the office of Sub-Registrar, there are certain compulsory pre-

requisites and there is nothing on record which may indicate

that any such pre-requisites were ever complied with.

vii. In any such situation when somebody executes a Will in a

Hospital and the maker of the Will is an aged and infirm

person, Sub Registrar has to record his complete satisfaction

about the mental and physical health of such person. In the case

in hand, there is nothing which may show whether such Sub-

Registrar had even tried to contact the Medical Superintendent

or any attending Doctor under whose supervision, the Testatrix

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remained admitted. There is nothing which may indicate that

any such Doctor had assured the Sub-Registrar that the

Testatrix was in sound disposing mind.

viii. It was also imperative for the petitioner to have examined such

Sub-Registrar but it was never even contemplated.

ix. There is also no record which may indicate that any request in

advance was sent to such Sub-Registrar for registering the Will

at the Hospital. It is also not clear as to who kept the Will, after

its execution.

x. As per the Will, the Testatrix wanted to create a trust with the

name of “Karuna Raj Vaderaa Charitable Trust”. Since she

remained alive for around four years after the execution of Will

and since nothing was done by her for the purposes of creating

such Trust, perhaps, she was not even aware about creation of

any such Trust.

xi. The alleged previously registered Will dated 07.10.2002 has

neither been pleaded nor proved.

xii. It was Mr. Asheesh Vaderaa who was calling the shots and got

the Will in question prepared, while knowing fully-well that his

mother was not in sound deposing mind.

xiii. Since neither the Executor nor Mr. Asheesh Vaderaa himself

graced the witness box, the initial onus does not stand

discharged.

28. Appellant has relied upon several judgments. These have been

categorized as under: -

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Sr. no. Title On the point of

1. i) Leela and Others. Vs. Muruganantham and Others.;

2025 SCC OnLine SC 16

ii) Meena Pradhan and Others Vs. Kamla Pradhan and

Another; 2023 SCC OnLine SC 1198

iii) Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao

and Others; (2006) 13 SCC 433

iv) Bharpur Singh and Others Vs. Shamsher Singh; 2008

SCC OnLine SC 1867

v) H. Venkatachala lyengar Vs. B.N. Thimmajamma and

Others; 1958 SCC OnLine SC 31

vi) Smt Jaswant Kaur Vs. Smt Amrit Kaur and Others;

1976 SCC OnLine SC 368

vii) Shashi Kumar Banerjee and Others Vs. Subodli Kumar

Banerjee since deceased and after him his legal

representatives and Others; 1963 SCC OnLine SC 114

viii) Uma Devi Nambiar and Others Vs. T.C. Sidhan

(Dead); 2003 SCC OnLine SC 1371

ix) Harish Chander Kawatra Vs. State & Others; 2009 SCC

OnLine Del 1480

x) Sita Kashyap Thru LRs Vs. Harbans Kashyap &Ors.;

2013 SCC OnLine Del 1971

xi) Yashoda Gupta Vs. Suniti Goyal and others; 2001 SCC

OnLine Del 383

Suspicious

Circumstance

2. i) Benga Behera and Another Vs. Braja Kishore Nanda and

Others; 2007 SCC OnLine SC 699

ii) Vijay Kumar Tiwari Vs. State and Anr.; 2008 SCC

OnLine Del 682

iii) Raja Ram Singh Vs. Arjun Singh &Anr.; 2002 SCC

OnLine Del 281

iv) Ajit Singh vs Nand Singh and Others; 1982 SCC

OnLine Del 154

v) Desh Raj Gupta Vs. State and Others; 2010 SCC OnLine

Del 2356

vi) Vijay Kumar Banerjee Vs. Arun Kumar Chakravarty

and others; 2003 SCC OnLine All 1106

vii) Vidhyadhar Vs. Manikrao and Another; 1999 SCC

OnLine SC 294

Onus to prove

the Will is

always on

Propounder

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3. i) Oil and Natural Gas Corporation Limited, Dehradun

Through Managing Director Vs. Commissioner of Income

Tax, Dehradun; 2010 SCC OnLine SC 363

ii) Desh Raj Gupta Vs. State and Others; 2010 SCC OnLine

Del 2356

Conduct of

Executor

4. i) Rani Pnrnima Debi and Another Vs. Kumar Khagendra

Narayan Deb and Another; 1961 SCC OnLine SC 89

ii) Rani Vs Kaliammal, M. Murugan and Smt. Pasurat;

MANU/TN/0337/2008

iii) Iswar Bhai C. Patel alias Bachu Bhai Patel Vs. Harihar

Behera and Another; 1999 SCC OnLine SC 286

iv) Ramesh DuttSalwan Vs. State Of Delhi; AIR 1989

(DEL) 47

Mere

registration of

Will does not

dispel suspicion.

5. i) Niranjan Umeshchandra Joshi vs Mrudula Jyoti Rao and

Others; 2006 SCC OnLine SC 1420

Appreciation of

evidence when

attesting witness

visits in hospital

during non-

visiting hours

6. i) Benga Behera and Another Vs. Braja Kishore Nanda and

Others; 2007 SCC OnLine SC 699

ii) H. Venkatachala Iyengar Vs. B.N. Thimmajamma and

Others; 1958 SCC OnLine SC 31

iii) Desh Raj Gupta Vs. State and Others; 2010 SCC

OnLine Del 2356

iv) Saradindunath Ray Chowdhury Vs. Sudhir Chandra

Das; 1922 SCC OnLine Cal 278

Sound and

Disposing mind

29. All such contentions have been refuted by Mr. Asheesh Vaderaa and

his wife.

30. Mr. Dayan Krishnan, learned Senior Counsel represents them and

submits that there is no merit or substance in the present appeal and, thus, it

is liable to dismissed. His contentions are as under: -

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i. The nature of inquiry to be conducted by any probate Court is a

summary one and its scope and ambit is very limited, as such

Court is, merely, to ascertain whether there is requisite

compliance of the relevant provisions of Indian Succession Act,

1925 or not. The prime duty of the Court is to find out whether

the Will has been executed in the presence of two or more

witnesses, and whether, at least one such attesting witness has

entered into the witness box and has proved the execution of the

Will.

ii. There is no suspicious circumstance of any nature whatsoever

and, the Testatrix was, though, admitted in Mool Chand

Hospital but was of sound disposing mind.

iii. Reliance has been placed upon the testimony of Dr. S.K.

Thakur who has, in no uncertain terms, deposed that Testatrix

was of sound disposing mind at the relevant time. Such

testimony coupled with the testimony of the two attesting

witnesses, clearly, suggests that the Will is unblemished.

iv. The sound medical condition of the Testatrix also stands

corroborated from the fact that she died approximately four

years after the execution of the above said Will dated

05.02.2003.

v. Mere fact that there was unequal distribution amongst the

natural heirs cannot, in itself, be taken as a suspicious

circumstance.

vi. There is also nothing on record which may indicate that there

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was any conflict of interest between the Testatrix on one side

and the propounder on the other.

vii. The Objector has pointed out certain discrepancies between the

two Wills submitted during trial i.e. Will produced by the

Executor (Ex-PW1/A) and the Will produced by the official

from the office of Sub Registrar Office (ExRW-1/A) and these

are, merely, in the nature of typographical discrepancies and

do not, even otherwise, materially alter the bequest and these

might have happened because of the fact that the execution of

Will had taken place at a Hospital and, therefore, no

significance can be attached to such discrepancies.

viii. Mr. Amitabh Narayan, Mr. Asheesh Vaderaa and Mrs. Monica

Vaderaa were never involved either with respect to execution

or with the registration of the Will.

ix. The assertion that execution and registration was at behest of

Mr. Asheesh Vaderaa is totally false. Testatrix and her son- Mr.

Asheesh Vaderaa, were on good terms and, in fact, she

completely relied on him and trusted him extensively. There

was never any acrimony between them, at any point of time.

Moreover, there is nothing which may indicate that Mr.

Asheesh Vaderaa has got a lion‟s share under the Will,

supplementing that the contentions in this regard have been

made, simply, to prejudice the mind of the Court.

31. Mr. Krishnan, learned Senior Counsel also relies upon the following

precedents: -

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Sr.

no.

Title On the point of

1. i) Meena Pradhan and Others Vs. Kamla

Pradhan and Another; 2023 SCC OnLine SC

1198

ii) Uma Devi Nambiar and Others Vs. T.C.

Sidhan; (2004) 2 SCC 321

Suspicious

Circumstances

2. i) Gian Chand and Others Vs. State of

Haryana; (2013) 14 SCC 420

Adverse inference

cannot be drawn in

relation to an aspect,

without having given

witness an opportunity to

explain that aspect.

3. i) State of U.P. Vs. Nahar Singh (Dead) and

Others; (1998) 3 SCC 561

Impact of no cross-

examination of witness

on a particular aspect.

4. i) Kishore Samrite Vs. State of Uttar Pradesh

and Others.; (2013) 2 SCC 398

Person, not coming with

clean hands, is not

entitled to any relief.

5. i) Ravindra Nath Mukherjee and Another

Vs. Panchanan Banerjee and Others; (1995)

4 SCC 459

Person close to maker of

Will cannot be suspected

merely because he is

Executor. Will, if

voluntary, has to be

accepted.

6. i) P.S. Sairam and Another Vs. P.S. Rama

Rao Pissey and Others; (2004) 11 SCC 320

Appreciation of evidence

7. i) Sridevi and Others Vs. Jayaraja Shetty and

Others; (2005) 2 SCC 784

ii) Meenakshiammal (Dead) Through Lrs

and Others Vs. Chandrasekaran and

Another; (2005) 1 SCC 280

iii) Durlabh Chandra Bhattacharjee Vs. Atul

Barthakur; (2005) 09 GAU CK 0068

iii) Daulat Ram and Others Vs. Sodha and

Others; (2005) 1 SCC 40

Onus to prove the Will is

always on Propounder

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32. I have given my thoughtful consideration to the above said

contentions, gone through the judgments and precedents cited at the Bar and

also, carefully, perused the Trial Court record.

33. Though numerous precedents have been cited by both the sides, this

Court would not mince any word in observing that the present case is little

peculiar in nature.

34. Though, there cannot be any dispute with the settled legal position,

fact also remains that each case has its own peculiarity and, therefore, the

precedent cannot be applied mechanically. Since one slight change in the

facts may lead to a different conclusion altogether, it is not, generally,

appropriate to blindly follow any precedent, without appreciating the factual

matrix.

35. The expression “Will” is defined under Section 2(h) of Indian

Succession Act, 1925 which is nothing but a legal declaration of “the

intention of testator with respect to his property which he desires to be

carried into effect after his death”. Section 59 of Indian Succession Act,

1925 governs the capability of a person to make a Will and it reads as

under:-

“59. Person capable of making Wills.—

Every person of sound mind not being a minor may dispose of

his property by Will.

Explanation 1.—A married woman may dispose by Will of any

property which she could alienate by her own act during her life.

Explanation 2.—Persons who are deaf or dumb or blind are not

thereby incapacitated for making a Will if they are able to know

what they do by it.

Explanation 3.—A person who is ordinarily insane may make a

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Will during interval in which he is of sound mind.

Explanation 4.—No person can make a Will while he, is in such

a state of mind, whether arising from intoxication or from illness

or from any other cause, that he does not know what he is

doing.”

36. As would be clear and obvious from above said expression used in

Section 59, every such person has to be of sound mind. It stipulates that

every person (not being a minor) “of sound mind” may dispose of his

property by Will. The second explanation appended to the said provision

clarifies that persons who are “deaf or dumb or blind” are not incapacitated

by such condition for making a Will “if they are able to know what they do

by it”. The third explanation makes the basic principle pellucid by adding

that even a person who is “ordinarily insane” may make a Will during the

interval in which “he is of sound mind”. The fourth explanation renders it

even more lucent by putting it negatively in words to the effect that if the

person “does not know what he is doing” for any reason (such as

intoxication, illness or any other such cause) he is incompetent to make a

Will. The focal pre-requisite, thus, is that at the time of expressing his desire

vis-a-vis the disposition of the estate after his demise, he must clearly know

and understand its purport and import.

37. A testamentary court is a court of conscience and one of the essential

pre-requisites is to show that maker of the Will was in sound disposing mind

at the relevant time. This vital ingredient has to be established. It cannot be

left for imagination, particularly when such maker is a lady in her eighties

and is admitted in hospital.

38. The execution of an unprivileged Will, as the case at hand relates to, is

governed by Section 63 of the Indian Succession Act, 1925. Any such Will

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requires attestation by minimum two witnesses, though, it is not obligatory

for any such propounder or petitioner to examine both of them. The

important aspect is the presence of the testator when the witnesses attest and

testimony of one of such witnesses. In this regard, reference can be made to

Section 67 and 68 of Indian Evidence Act, 1872 (Sec 65 and 67 of Bharatiya

Sakshya Adhiniyam, 2023).

39. There is no straight jacket formula to decide valid execution of any

such Will and its due attestation.

40. This has to be deciphered from the evidence led on record and various

attendant circumstances.

41. Needless to say, Court is, generally, required to take a holistic view of

the situation.

42. Who gets less and who gets more also does not matter much unless

such bequeath shakes judicial conscience, completely. A Will is executed to

alter the ordinary mode of succession and by the very nature of things, it is

bound to result in either reducing or depriving the share of all or some of the

natural heirs. If a person intends his property to pass to his natural heirs,

there is, apparently, no necessity of executing any Will. Nonetheless, 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, or one or few of them, by itself without anything more, cannot be

held to be a suspicious circumstance.

43. There are series of judgments which lay down general propositions for

proving execution of any such Will and I may refer to a recent judgment of

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Meena Pradhan vs Kamla Pradhan (supra) relied upon by both the parties.

In the above said case also, the Hon‟ble Supreme Court, after taking into

consideration various previous judgments, culled out the principles. The

relevant paras of said judgment read as under:-

“9. A Will is an instrument of testamentary disposition of property. It

is a legally acknowledged mode of bequeathing a testator‟s property

during his lifetime to be acted upon on his/her death of the testator.

Since the testator/Testatrix, at the time of testing the document for its

validity, would not be available for deposing as to the circumstances

in which the Will came to be executed, stringent requisites for the

proof thereof have been statutorily enjoined to rule out the possibility

of any manipulation.

10. Relying on H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959

Supp (1) SCR 426 (3-Judge Bench), Bhagwan Kuar v. Kartar Kaur,

(1994) 5 SCC 135 (3- Judge Bech), Janki Naryan Bhoir v. Narayan

Namdeo Kadam, (2003) 2 SCC 91 (2-Judge Bench) Yumnam Ongbi

Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780

(3-Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC

277 (3-Judge Bench), we can deduce/infer the following principles

required for proving the validity and execution of the Will:

i. The court has to consider two aspects: firstly, that the Will is

executed by the testator, and secondly, that it was the last Will

executed by him;

ii. It is not required to be proved with mathematical accuracy,

but the test of satisfaction of the prudent mind has to be applied.

iii. A Will is required to fulfil all the formalities required under

Section 63 of the Succession Act, that is to say:

(a) 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 the said signature or affixation shall show

that it was intended to give effect to the writing as a Will;

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(b) It is mandatory to get it attested by two or more witnesses,

though no particular form of attestation is necessary;

(c) Each of the attesting witnesses must have 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 such signatures;

(d) Each of the attesting witnesses shall sign the Will in the

presence of the testator, however, the presence of all witnesses

at the same time is not required;

iv. For the purpose of proving the execution of the Will, at least

one of the attesting witnesses, who is alive, subject to the process of

court, and capable of giving evidence, shall be examined;

v. The attesting witness should speak not only about the

testator‟s signatures but also that each of the witnesses had signed the

Will in the presence of the testator;

vi. If one attesting witness can prove the execution of the Will,

the examination of other attesting witnesses can be dispensed with;

vii. Where one attesting witness examined to prove the Will fails

to prove its due execution, then the other available attesting witness

has to be called to supplement his evidence;

viii. Whenever there exists any suspicion as to the execution of the

Will, it is the responsibility of the propounder to remove all legitimate

suspicions before it can be accepted as the testator's last Will. In such

cases, the initial onus on the propounder becomes heavier.

ix. The test of judicial conscience has been evolved for dealing

with those cases where the execution of the Will is surrounded by

suspicious circumstances. It requires to consider factors such as

awareness of the testator as to the content as well as the

consequences, nature and effect of the dispositions in the Will; sound,

certain and disposing state of mind and memory of the testator at the

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time of execution; testator executed the Will while acting on his own

free Will;

x. One who alleges fraud, fabrication, undue influence etcetera

has to prove the same. However, even in the absence of such

allegations, if there are circumstances giving rise to doubt, then it

becomes the duty of the propounder to dispel such suspicious

circumstances by giving a cogent and convincing explanation.

xi. Suspicious circumstances must be „real, germane and valid‟

and not merely „the fantasy of the doubting mind‟. Whether a

particular feature would qualify as „suspicious‟ would depend on the

facts and circumstances of each case. Any circumstance raising

suspicion legitimate in nature would qualify as a suspicious

circumstance for example, a shaky signature, a feeble mind, an unfair

and unjust disposition of property, the propounder himself taking a

leading part in the making of the Will under which he receives a

substantial benefit, etc.

11. In short, apart from statutory compliance, broadly it has to be

proved that (a) the testator signed the Will out of his own free Will, at

the time of execution he had a sound state of mind, (c) he was aware

of the nature and effect thereof and (d) the Will was not executed

under any suspicious circumstance.”

44. In the instant case, the entire thrust of the Objector is with respect to

the fact that there is unexplained mystery which shrouds the execution of the

Will and sound disposing state of Testatrix. As per afore-extracted

principles, whenever there is any suspicion as to the execution of the Will, it

is the responsibility of the propounder to remove all legitimate suspicions

before it can be accepted as the testator's last Will and, therefore, the initial

onus on the propounder becomes heavier. Judicial conscience has to have

complete guarantee while dealing with cases where the execution of the Will

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is surrounded by suspicious circumstances and, therefore, the court needs to

consider factors, inter alia, sound, certain and disposing state of mind of the

testator at the time of execution. It has also been observed therein whether a

particular feature would qualify as „suspicious‟ would depend on the facts

and circumstances of each case. Any circumstance, raising suspicion

legitimate in nature, would qualify as a suspicious circumstance, including a

feeble mind.

45. Let me now weigh up the suspicious circumstances, alleged herein.

46. The suspicious circumstances highlighted by the Objector, primarily,

revolve around two facets.

47. Firstly, Testatrix was admitted in the hospital at the relevant time and

there is nothing on record which may remotely indicate that she was in

sound disposing mind.

48. Secondly, there is whole lot of cloud under what circumstances, the

concerned Sub-Registrar had come to the hospital. The Objector also

expresses astonishment as to where are the mandatory pre-requisites. It is

argued that there is nothing which may indicate that any advance

information was sent to office of Sub-Registrar. He also raises his eyebrow

the manner in which the sub-Registrar has gone ahead with the execution,

without even bothering to contact the concerned doctor under whose

examination and supervision, the Testatrix was admitted in the hospital.

49. Therefore, it will be appropriate to first deal with the above said vital

aspects.

50. As noticed already, any and every circumstance is not a suspicious

circumstance. Even where any beneficiary takes active participation in

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execution of the Will, it has been held that such fact, by itself, is not

sufficient to create any doubt either about the testamentary capacity or the

genuineness of the Will. At times, mere presence of the beneficiary at the

time of execution would not be enough to prove that the beneficiary had

taken prominent part in the execution of the Will. Reference in this regard be

made to Pentakota Satyanarayana vs. Pentakota Seetharatnam, (2005) 8

SCC 67.

51. In Hari Singh & Anr Vs. The State & Anr. 2010 (120) DRJ 716, this

Court observed that law does not prescribe or expect that only very close

family friends or associates should witness Will. It also observed that courts

are not expected to be satisfied that a bequeathal is rational or not; what has

to be considered is whether the bequest was so unnatural that the Testator

could not have made it. In Hari Singh (supra), the Hon‟ble High Court made

reference to Jagdish Lal Bhatia vs Madan Lal Bhatia: 2008(100) DRJ 98

which deals with the legal burden of proof when a Will is propounded and

also spelt as to what would constitute suspicious circumstances and what

form of affirmative proof should be sought by the court to satisfy the judicial

conscience that the document propounded is the last legal and valid custom

of the testator. These principles are as under:

“I. The legal burden to prove due execution always lies upon the

person propounding a Will. The propounder must satisfy the judicial

conscience of the court that the instrument so propounded is last

Will of a free and capable testator.

II. The onus is discharged by the propounder adducing prima facie

evidence proving the competence of the testator and execution of the

Will in the manner contemplated by the law. The contestant

opposing the Will may bring material on record meeting such prima

facie in which event the onus would shift back on the propounder to

satisfy the Court affirmatively that the testator did know well the

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contents of the Will and in sound disposing capacity executed the

same. (see the decision of the Supreme Court in Madhukar D.

Shende v Tarabai Aba Shedge, AIR 2002 SC 637).

III. No specific standard of proof can be enunciated which must be

applicable to all the cases. Every case depends upon its

circumstances. Apart from other proof, conduct of parties is very

material and has considerable bearing on evidence as to the

genuineness of Will which is propounded. Courts have to be vigilant

and zealous in examining evidence. Rules relating to proof of Wills

are not rules of laws but are rules of prudence.

IV. Expanding on the care and caution to be adopted by the courts,

and presumptions to be raised, in the decision reported as (1864) 3

Sw & Tr. 431 In The Goods of Geale, it was opined that where a

person is illiterate or semi literate or the Will is in a language not

spoken or understood by the Executor, the court would require

evidence to affirmatively establish that the testator understood and

approved all the contents of the Will.

V. One form of affirmative proof is to establish that the Will was

read over by, or to, the testator when he executed it. If a testator

merely casts his eye over the Will, this may not be sufficient.

VI. Courts have to evaluate evidence pertaining to the circumstances

under which the Will was prepared. If a Will is prepared and

executed under circumstances which raise a well grounded

suspicion that the Executor did not express his mind under the Will,

probate would not be granted unless that suspicion is removed.

VII. A word of caution. Circumstances can only raise a suspicion if

they are circumstance attending, or at least relevant to the

preparation and execution of the Will itself.

VIII. Another point that has to be considered is about the

improbability in the manner in which the instrument is scripted.

Instance of suspicious circumstances would be alleged signatures of

testator being shaky and doubtful, condition of the testator's mind

being feeble and debilitated, bequest being unnatural, improbable

and unfair.

IX. Suspicious circumstances are a presumption to hold against the

Will. Greater is the suspicion more heavy would be the onus to be

discharged by he who propounds the Will.

X. A Will is normally executed by a person where he intends to alter

the rule of succession or where he desires a particular form of

inheritance and to that extent, nature of bequest is not of much

substance to invalidate a Will, but consistent view taken by

the courts is that this could be treated as a suspicious circumstance.

What weightage has to be attached to this suspicion would depend

upon case to case. XI. Suspicion being a presumptive evidence, is a

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weak evidence and can be dispelled.”

52. As per the specific case of the Executor, the Testatrix was admitted in

hospital when the Will was executed. And, that the concerned Sub-Registrar

himself had come to the hospital for registration, pursuant to request sent to

him.

53. I have already referred to the averments appearing in the probate

petition. In the petition, it has, merely, been stated that Mrs. Karuna Raj

Vaderaa executed her last Will on 05.02.2003 which was registered as

document No. 539 in Addl. Book No. III, Vol No. 1216. It is not

comprehensible as to why such a crucial fact that the Testatrix was admitted

in a hospital and that the sub-Registrar had come to the hospital has not even

been whispered in the petition. There was, actually speaking, no reason

whatsoever to have ignored, overlooked and disregarded the above said

important aspects, while presenting the petition.

54. Petitioner- Amitabh Narayan claims that he is the Executor.

55. Surprisingly, it was only during the course of the pendency of the

present appeal that it came to fore that the Will in question had been drafted

by him. When the written synopsis was filed by Mr. Amitabh Narayan

before this Court, he divulged the above said aspect for the first time that he

was the one who had drafted the Will as per the request and instructions of

Testatrix. He claimed that since he was family lawyer of Vaderaa family, he

consented to such request. He claimed that he prepared two printouts of the

Will which were got collected by Testatrix through her representative from

his office, a day or two before the date of execution of Will. He also revealed

that after going through such Will, the Testatrix called him (Amitabh

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Narayan) over the phone and told him that she wanted to make minor

changes in certain clauses of Will and communicated such changes to him

over the phone and on such instructions, Mr. Amitabh Narayan generated

two more printouts of such changed Will which were also got collected by

Testatrix through her representative on same day i.e. on 05.02.2003. He also

claimed that the date as 05.02.2003 was mentioned in the Will as per the

request and the instructions of the Testatrix. He also revealed that same

evening, the Testatrix again called him to inform that she had executed the

Will in Mool Chand Hospital and had even got the same registered and that

she had made him (Mr. Amitabh Narayan) Executor of such Will.

56. He also claimed that such original Will, after it was duly registered,

was sent by her to him in a sealed cover through her representative and

thereafter, such Will remained in his possession till it was submitted before

the probate Court.

57. Interestingly, Mr. Amitabh Narayan also claimed in his such written

submissions that he was not present at Mool Chand Hospital at the time of

execution/registration of Will and it appeared that by mistake, the Testatrix

might have signed a printout which was already lying with her before the

date of execution and which was required to be altered and that she also

signed the other printout, which was incorporating the changes, which had

been sent to her by him on 05.02.2003. He has, thus, tried to explain the

differences in the two copies of the Wills, in the above manner.

58. The question is how to take these belated revelations?

59. I strongly feel that these disclosures cannot be kept aside in an

unconcerned manner.

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60. These seem to have been made with calculated objective i.e. to take

sheen out of the contentions made by the Objector respecting such

deviations. The Objector had claimed that there were material changes in the

two copies of the Will, one produced by the Executor and the one brought

from the office of the Sub-Registrar and Mr. Amitabh Narayan has come up

with a fantastical explanation, which, hardly seems believable in the present

context. As already noted, he does not even mention in the petition that at

the time of execution of Will, the Testatrix was in the hospital. He does not

even mention that the Sub-Registrar had come to the Hospital. He also does

not mention that he was the one who had prepared the Will as per the

instructions of Testatrix. He does not mention that, initially, the Will was

prepared on 03.02.2003 and then on the basis of some further instructions,

he carried out certain changes and prepared another Will on 05.02.2003.

61. Nobody knows as to who is that representative who collected the Will

from him on the said two occasions. Despite being the family lawyer and

also being named as Executor, and despite the fact that the Will was drafted

by him as per the instructions of the Testatrix, he was not even present at the

hospital at the time of alleged execution.

62. Since there were certain changes between the two sets of the Wills i.e.

the first set which was prepared one or two days before the execution and the

other set prepared on same day, in order to clear the entire air, it was

imperative for Mr. Amitabh Narayan to have elaborated all these facts in the

probate petition itself.

63. To make things worse, he does not even think of entering into witness

box.

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64. This according to me is nothing but a suspicious circumstance in

itself.

65. The next aspect would be to assess the medical condition of the

Testatrix.

66. It has to be seen whether the Testatrix was in sound disposing mind at

the relevant time or not.

67. I need not re-emphasize the fact that since the probate petition has

been filed by the Executor, the initial onus and responsibility is on the

shoulders of such propounder and Executor to clearly show to the Court that

there is no distrust with respect to the execution of the Will and that the

Testatrix was in sound disposing mind.

68. The petition contains verification of two attesting witnesses i.e. Mr.

Mukul Bhatnagar and Dr. Vinod Rai and along with the petition, the

petitioner had merely filed two documents i.e. original Will and certified

copy of death certificate.

69. No other document was filed with the probate petition.

70. The Executor seemed to be of the notion that the moment, the above

said two attesting witnesses are examined, the onus would stand discharged

successfully and it would be, then, for his adversary to establish any

suspicious circumstance with respect to the execution of the Will.

71. Such thinking on the part of Executor is not comprehensible at all.

72. The Testatrix was admitted in the hospital.

73. Her son Mr. Asheesh Vaderaa must have been taking care of his

mother.

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74. Testatrix, initially, remained in Mool Chand Hospital and since her

condition did not improve and since there was requirement of some surgical

intervention, she was shifted to Ganga Ram Hospital. However, before her

such shifting to Ganga Ram Hospital, the Will in question was, allegedly,

executed by her.

75. The present case is little unusual in the sense that the Will was

executed in the hospital and, therefore, it is really baffling as to why the

medical records of Testatrix were not attached with the probate petition. No

such document was placed on record either by the petitioner or for that

matter by her such other son Mr. Asheesh Vaderaa and his wife Mrs. Monica

Vaderaa.

76. Curiously, medical record has rather been placed on record by none

other than Objector Mr. Ashval Vaderaa.

77. Not only did he produce the record with respect to the above said

hospitalization, but also submitted record of hospitalization of her mother for

the other period as well and there is no enlightenment from the side of the

petitioner and from Mr. Asheesh Vadera as to why they themselves did not

produce any such record.

78. The execution of the Will is at the hospital.

79. As a rule, any such registration is to take place in the office of Sub-

Registrar. The exception is contained in section 31 of Registration Act, 1908

which states that on special cause being shown, such registration can take

place at the residence of any person. Section 31 of Registration Act, 1908

reads as under:-

“31. Registration or acceptance for deposit at private residence.

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- In ordinary cases the registration or deposit of documents under this

Act shall be made only at the office of the officer authorised to accept

the same for registration or deposit:

Provided that such officer may on special cause being shown attend at

the residence of any person desiring to present a document for

registration or to deposit a Will, and accept for registration or deposit

such document or Will.”

80. Obviously, it is not a case where the registration has taken place at the

residence of Testatrix but keeping in mind the spirit and objective of the

abovesaid provision, it can be assumed that such registration can even take

place at a hospital.

81. However, wherever such execution takes place at a hospital, the task

becomes much more onerous and as a necessary consequence, the initial

onus on the part of any propounder also becomes extra-rigorous. In such a

situation, it is rather obligatory for any such petitioner to, categorically,

demonstrate that at the relevant time when the Will was executed in the

hospital, the Testatrix was in sound disposing mind and also that all the

formalities with respect to summoning of a Sub-Registrar to a hospital were

duly carried out.

82. Here, as already stated above, the petitioner assumed his job to be

over by examining the two attesting witnesses.

83. Let‟s assume a situation where such Objector does not even choose to

lead evidence.

84. Whether merely on the basis of the testimony of the attesting

witnesses, a court, in such a situation, can reach a definite conclusion that

the Testatrix was in a sound disposing mind and that all such requisite

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formalities regarding sending request to Sub-Registrar stood clearly proved

on record.

85. The answer has to be an emphatic „no‟.

86. As noted already, neither any medical record has been placed by the

petitioner himself, nor has the other son, who must be taking care of his

mother, thrown some light over the same. Her medical condition could have

been confirmed by those family members who got her admitted. It really

does not matter whether they were also beneficiaries. No doctor or any

medical certificate issued by such doctor for said date, is before us to vouch

for her sound disposing state.

87. There is also no record suggesting sending of advance information to

the concerned Sub-registrar and, therefore, it is really surprising to

understand as to how the onus stood shifted on to the Objector.

88. Thus, quite evidently, the initial onus was never discharged by the

petitioner in the desired manner.

89. Of course, the two attesting witnesses entered into witness box but in

view of the peculiar facts of the present case, that was not, in itself,

sufficient.

90. Let me now come to the Will.

91. Such Will has been proved as Ex-PW-1/A.

92. In such Will, the Testatrix has claimed as under:-

“I am advanced in age but mentally alert and sound and to obviate

any dispute about the succession to my estate, I am executing this Will

in respect of my moveable and immovable properties.

I am executing this Will on my own, voluntarily without any pressure

from any quarter.”

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93. As per the petitioner, he had drafted the above said Will as per the

instructions, he also knew that at that time, the Testatrix was admitted in

hospital. It is really intriguing as to why such an important fact that at the

time of execution of her such Will, she was admitted in a hospital has not

even been typed in the Will. Such crucial omission also cannot be

disregarded nonchalantly.

94. There are two important pages of the above said Will which I need to

extract in the judgment.

95. These relate to the attesting witnesses and the endorsement given by

the concerned Sub-Registrar. These are as under:-

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96. The abovesaid description would indicate that Mr. Mukul Bhatnagar

and Ms. Ritu Suri have been shown witnesses and they signed in such

capacity.

97. Thereafter, Dr. Vinod Rai has also signed as witness.

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98. Mr. Ramesh Kumar, learned counsel for the Objector contends that a

bare glimpse of the above said page i.e last page of the Will, would suggest

that the name of Dr. Vinod Rai has been added subsequently to somehow

offer some extra impetus to the case of the petitioner. Surprisingly, Dr.

Vinod Rai, though, records that he had talked to Ms. Karuna Raj Vaderaa

and found her in sound mind and mentally alert, no such endorsement is

there from the other two witnesses viz Mr. Mukul Bhatnagar and Ms. Ritu

Suri. Mr. Kumar, learned counsel also submits that thereafter, there is also

an endorsement of Mr. Jai Narayan, Advocate, to the effect that the Testatrix

had admitted the contents and that she and witnesses had signed in his

presence. Said advocate has also not entered into witness box for the reasons

best known to the petitioner.

99. The endorsement made by Sub-Registrar–III, New Delhi reads as

under:-

“The Testatrix executed and signed the Will on medical ground

under M C issued by Dr. S K Thakur, MD and her signature has

been taken at hospital.”

100. Such endorsement does not indicate that the Sub-Registrar had met

Dr. Thakur. It merely mentions about one M.C. (Medical certificate).

101. Interestingly, there is no endorsement by Sub-Registrar–III to the

effect that the Testatrix was in sound disposing mind.

102. Before dealing with the testimony of the two attesting witnesses, let

me straightaway come to the testimony of the Dr. (Col.) S.K. Thakur. It

assumes importance because as per the endorsement of Sub-Registrar, the

medical certificate had been issued by Dr. S.K. Thakur.

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103. As already noticed, Dr. Thakur was examined at the behest of Mrs.

Monica Vaderaa and in his deposition dated 20.03.2017, he stated that he

was working as consultant Gastroenterologist at Mool Chand Hospital. He

deposed that he had seen the discharge summary of Mrs. Karuna Raj

Vaderaa which was EX-OW-1/5.

104. As per further deposition of Dr. Thakur, the Testatrix remained

admitted in Mool Chand Hospital from 31.01.2003 to 07.02.2003. She was

admitted with sub-acute intestinal obstruction and throughout her admission,

under his care during the above said period, apart from abdominal pain and

vomiting, she was conscious, alert and oriented. He deposed that none of the

medicines which she had received during her such hospitalization, had any

effect on her state of consciousness and alertness. He also deposed that at no

point of time, her condition required her to be shifted to Intensive Care Unit

(ICU). He also deposed that he remembered giving a medical fitness

pertaining to her alertness during her period of hospitalization.

105. When Dr. Thakur was tendered for cross examination, a medical

fitness certificate was shown to him by none other than counsel for Mr.

Asheesh Vaderaa and Ms. Monica Vaderaa and in such cross-examination,

he admitted that such certificate was issued by him. Accordingly, such

certificate was exhibited as Ex-CW-1/1.

106. Such certificate is of 03.02.2003 and reads as under:-

“This is to certify that Mrs. Karuna Raj Vaderaa is admitted in

Moolchand Hospital on 31.01.2003 as a case of sub acute Intestinal

Obstruction. However, her mind is in sound and proper condition.”

107. There are two aspects with respect to the above said medical

certificate.

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108. Firstly, it is not explained as to why this important medical certificate

was held back for all these years. Ideally, it should have been placed on

record either with the petition or when the written statement was filed by Mr.

Asheesh Vaderaa.

109. Secondly, and most importantly, this medical certificate is of

03.02.2003.

110. Need I remind myself that the date of execution of the Will is

05.02.2003.

111. Medical condition of any person, admitted in hospital, can deteriorate

in no time and here, there is a gap of around 48 hours which is not a small

time-window. It beats my imagination as to how said certificate, even if it is

believed to be a genuine one, is going to serve any real purpose. This

certificate cannot establish that the Testatrix continued to remain in the same

sound disposing condition and was physically and mentally alright on

05.02.2003 as well and, therefore, such medical certificate does not serve the

requisite purpose at all. It is, therefore, not digestible as to how the Sub-

Registrar, if at all he had seen the same, could have relied upon the same. I

may also stress that there is no other certificate, except the above. I have

already extracted above the relevant endorsement made by the Sub-

Registrar. He merely mentions about the medical certificate issued by Dr.

Thakur. He did not even find it prudent to retain any such medical

certificate.

112. That‟s why there was, actually speaking, a dire necessity of having

deposition of Sub-Registrar concerned.

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113. Yes, in normal circumstances, the Court, generally, does not direct for

personal examination of any such Sub-Registrar. The aspect of registration

can be proved through any other official of such office, besides with the help

of testimony of the attesting witnesses.

114. However, the present case is an exception to the general rule.

115. Here, the Sub-Registrar had come to the hospital and such visit is on

the basis of request, made in advance. As per the Section 31 of Registration

Act, a special cause has to be shown as to why such officer should leave his

office and to come to some other place for registration.

116. According to Objector, the pre-requisites in this regard are, though,

not given either in the Registration Act or in Delhi Registration Rules, 1976,

the information in this regard was sought by the Objector by moving

applications under Right to Information Act and such information clearly

indicates that in any such situation, a request is to be made in advance to

concerned Sub-Registrar to visit the hospital for registration of the Will. The

prescribed fee for purposes of such visit and registration of Will on medical

ground is required to be deposited, besides the travelling allowance. Any

such written request has to accompany the document in duplicate to be

executed by any such testator and also with the medical certificate, issued by

the concerned hospital. Reference in this regard be made to information

given by Sub-Registrar III on 02.02.2013 which has been proved as Ex-

R5W1/02.

117. Here there is nothing which may indicate as to whether any advance

information was sent to the Sub-Registrar.

118. Nobody knows as to what intimation was sent and how.

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119. Nobody knows whether along with such intimation in writing, any

copy of the Will and any medical certificate was also sent to the concerned

Sub-Registrar.

120. There is no such record whatsoever.

121. To make things worse, Mr. Asheesh Vaderaa has maintained eerie

silence.

122. Even if he was having no objection to the grant of probate, he should

have graced the witness box to repel all these mysterious circumstances

shrouding the execution of the Will and medical condition of his mother. He,

however, does not bother to enter into witness box and when Dr. Thakur

enters into witness box, he (Mr. Asheesh Vaderaa) shows him one medical

certificate purported to have been issued by Dr. Thakur.

123. Be that as it may, there is nothing to indicate as to how and when

request was sent to Sub-Registrar. This aspect is not mere procedural in

nature and existence of such record cannot be left for imagination.

124. Even if, for a moment, I disregard the non-availability of such written

request, the manner in which such officer has done the registration leaves

much to be desired.

125. Any such Sub-Registrar, while coming to hospital for a specific

purpose of execution of a Will, has to make himself sure and certain that the

maker of the Will is in sound disposing mind. The very fact that Sub-

Registrar has been requested to visit to hospital for special purpose puts him

on guard and before doing anything else, such Sub-Registrar has to first

meet the Medical Superintendent of the hospital or for that matter, the

attending doctor to reassure himself about the physical and mental faculties

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of such maker of the Will. There is nothing which may indicate that the

concerned Sub-Registrar had met any doctor that day or had assured himself

about the medical condition of Testatrix. Without even bothering to verify

the identity of the Testatrix, he simply endorsed that she had executed the

Will on Medical ground on the basis of some medical certificate issued by

Dr. Thakur, which was not even retained by him. He does not even record

anywhere that he had met Dr. Thakur that day or that he had called Dr.

Thakur at the time of registration or execution of Will. Dr. Thakur also

nowhere deposed that he ever met such Sub-Registrar at the hospital that

day.

126. To have complete clarity about the abovesaid aspects, the ideal

scenario was to have examined the above said Sub-Registrar. His

examination was, virtually, sine qua non to clear the air.

127. Only he could have apprised the Court as to under what

circumstances, he had gone to hospital for registration. He could have

apprised as to where is such written request to him. He could have apprised

as to how and when the requisite fee in this regard had been paid or

deposited. He could have been deposed as to whom he contacted in the

hospital to assure himself about the identity and medical condition of

Testatrix before registering document.

128. Unfortunately, such Sub-Registrar has not been examined by the

petitioner which, itself, puts a big question mark with respect to the fact

whether the Testatrix was, actually, in a sound disposing mind or not at the

relevant time on 05.02.2003.

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129. Obviously, her condition did not improve and since there was some

surgical intervention required, she was shifted to Ganga Ram Hospital on

07.02.2003.

130. This Court also cannot be ignorant of the fact that she was 80 years of

age when she had allegedly executed her said Will and, therefore, in such a

peculiar situation, it was expected of petitioner to have discharged his onus

absolutely and completely, leaving no misgiving and apprehensiveness about

the fitness of Testatrix. Instead, the onus has been shifted to Mr. Ashval

Vaderaa to establish the existence of suspicious circumstances, if any.

131. Let me now see testimony of the attesting witnesses.

132. If the case of the petitioner is to be believed then there are three

attesting witnesses viz. Mr. Mukul Bhatnagar, Ms. Ritu Suri and Dr. Vinod

Rai. Though Objector would contend that the attesting witnesses, at best,

could be Mr. Mukul Bhatnagar and Ms. Ritu Suri only and not Dr. Vinod

Rai, leaving aside such contention for a moment, let me see the testimony of

two attesting witnesses who have graced the witness box.

133. PW1 Dr. Vinod Rai, in his affidavit of examination-in-chief (Ex. P-1),

stated that he was medical practitioner for last twenty-years and had gone to

Mool Chand Khairati Lal Hospital to sign as an attesting witness. He

deposed that Smt. Karuna Raj Vaderaa read the Will in his presence and

stated that it was in accordance with her wishes. He also deposed that she

was mentally alert and in a sound disposing mind, which he could discern

after talking to her. He deposed that thereafter, she signed on each page of

the Will and put her thumb impression on each page and in his presence as

well as in the presence of Mr. Mukul Bhatnagar and Sub-Registrar. He

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deposed that immediately thereafter, Mr. Mukul Bhatnagar and he himself

also signed the Will as attesting witnesses.

134. Before touching his cross-examination, I need to highlight one

material aspect.

135. In his entire affidavit of examination-in-chief (Ex. P-1), he did not

even whisper about the other attesting witness Ms. Ritu Suri. His such

affidavit is conspicuously silent even with respect to mere presence of Ms.

Ritu Suri at the time of execution of such Will.

136. Though Dr. Vinod Rai claims that he was practicing since 1989 but

when certain questions were put to him to assess his knowledge about the

medical terms, he failed to provide satisfactory answers as he was unable to

explain about the full form of several such terms viz. ANTG, SAIO &

PSVT. He failed to apprise as to why injection NTG is administered to

anyone. Though it may not be of great relevance in any other situation but

keeping in mind the fact that Testatrix was admitted in hospital, this Court

expected that being doctor, he would be aware about these medical terms,

more so when he also endorses in writing about her sound condition. As

noticed, the other two witnesses, while appending their signatures, did not

mention anything about the sound mind and mental alertness of the Testatrix

whereas Dr. Rai has mentioned so while putting his signatures.

137. He admitted in his further deposition that he knew that Testatrix had

cardio-respiratory and intestinal problem since 2000. He claimed that he was

called by the Testatrix in the hospital on 05.02.2003. She had called him up

on telephone and told him that she was going to execute a Will and,

therefore, requested him to attest the same. He reached hospital at about

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3.00 to 3.30 PM and stayed there for about 30 to 45 minutes. He also

deposed that he had learnt about her hospitalization in advance from Ms.

Asheesh Vaderaa. He deposed that Testatrix took about 15-20 minutes in

reading out the Will. He also deposed that he was not carrying any

identification card with him to show that he was a doctor. He also deposed

that he had not seen history-sheet of Testatrix though she had intestine

obstruction problem at the relevant time. He claimed that he was told in this

regard by the Testatrix as well as Mr. Asheesh Vaderaa that she was

suffering from intestine obstruction problem. He, however, deposed that he

did not know as to who got her admitted in the hospital and what medicines

had been prescribed to her. He also deposed that none of the doctor of the

aforesaid hospital had written anything on the Will in his presence. He also

deposed that he did not know whether any officer from the office of Sub-

Registrar was present in the room at that time or not. He also claimed that

he had met one lady Ms. Suri or Ms. Puri, once prior to 05.02.2003 and he

met her perhaps on a dinner in the house of Testatrix.

138. In cross-examination, he also claimed that there was no formal

introduction with that lady on 05.02.2003. He claimed that he did not make

any enquiries from Testatrix as to from where she had got the Will prepared

and to whom she had given her property. Surprisingly, he also claimed that

he did not know as to who prepared his affidavit Ex. P-1. In his further

cross-examination, he also claimed that no certificate was given by any

doctor at the hospital at the time of execution of such Will.

139. As regards Sub Registrar, he deposed that he did not know whether

Sub Registrar had written or made any endorsement on the Will. He claimed

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that such Sub Registrar did not read over the Will to the Testatrix. He also

does not know whether the Sub Registrar had done anything after the

execution of the Will. He denied that the Will was a fabricated one which

was prepared in connivance with Mr. Asheesh Vaderaa and other witnesses.

He never visited Testatrix at Ganga Ram Hospital. So much so, he claimed

that he was not aware about her admission in Ganga Ram Hospital. Most

surprisingly, he also claimed that he did not meet any family member of

Testatrix in the hospital at the time of execution of Will.

140. Though, initially, he feigned ignorance about certain medical terms &

conditions, when further question was put to him in this regard on

07.03.2012 in cross-examination, he came up with an evasive answer by

deposing that a patient, who was suffering from high blood pressure and was

not passing stool for two-three days and was suffering from SAIO and to

whom injection Nitroglycerin had been administered, may or may not be in a

serious condition. Such deposition rather raises eyebrows regarding

Testatrix, being in sound condition.

141. Be that as it may, even if, for a moment, it is assumed that Dr. Rai was

also one of the attesting witnesses, his testimony does not inspire much

confidence as regards physical and mental condition of Testatrix. His

endorsement on the Will, therefore, also does not have much reliability.

142. PW2 Mr. Mukul Bhatnagar is the other attesting witness and his

examination-in-chief is also virtually on the same lines.

143. In his such affidavit (Ex. PW2/A), he also claimed that Testatrix had

signed the Will in his presence and in the presence of Dr. Vinod Rai and Sub

Registrar. His examination-in-chief also does not contain even a whisper

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about the presence of Ms. Ritu Suri. He knew Testatrix as he was her

Chartered Accountant. He also deposed that he was called by the Testatrix

herself for the execution of said Will. He reached her room in the hospital at

about 2.00 PM. He deposed that he did not get the pass prepared for such

visitation. In his cross-examination through he claimed that there was one

more lady Ms. Ritu Suri present in the room of the hospital but also claimed

that he did not know her. He does not recall whether during his stay in the

aforesaid room, any nurse or any other staff of the hospital visited there but

as far as visit of any doctor is concerned, he was very specific and deposed

that during his stay in the room, no doctor from the hospital visited that

room. He also does not recollect whether official from the Sub Registrar

office had consulted any doctor from the hospital. He knew Mr. Amitabh

Narayan who was the lawyer of Mr. Asheesh Vaderaa, Mr. Ashval Vaderaa

and Testatrix. His deposition is in synchronization with the testimony of

other attesting witnesses as he also deposed that Will was read by Testatrix

and she took around 20-35 minutes to read it out and after reading out the

Will, she signed the Will. However, as regards any endorsement made by

the Sub Registrar, he was blissfully ignorant as he deposed that he could not

recollect whether such official had written anything on the Will or not. He

also could not throw any light with respect to the overwriting appearing in

the dates by contending that he did not recollect whether these were made in

his presence or not.

144. When the Will was shown to him, he admitted that such official from

the office of Sub Registrar had not written the name of Dr. Vinod Rai. He

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supplemented that Sub Registrar had only written his name as well as the

name of Mrs. Suri.

145. PW2 Mukul Bhatnagar also does not recall whether any medical

certificate of Testatrix was handed over to the Sub Registrar at the time of

registration of the Will in the hospital to show her medical condition. He

does admit that Testatrix was undergoing certain medical problems but

supplemented that he was not aware whether she had undergone any

operation or not. in his cross-examination too, he claimed that he did not

know Mrs. Ritu Suri. It was suggested to him that he had forged the Will in

connivance with Mr. Asheesh Vaderaa to which he answered in negative.

He denied that no Sub Registrar had come to the room of Testatrix on the

day of execution and registration, and also denied that her aforesaid Will was

forged and fabricated and that no such Will was executed by her at the

hospital or anywhere.

146. I may also highlight two important aspects related to testimony of said

two attesting witnesses.

147. I have already extracted the relevant portion where there is also

endorsement of Sub-Registrar. There is reference of names of attesting

witnesses near such endorsement and if the same is to be believed, the

attesting witnesses were Mr. Mukul Bhatnagar and Ms. Ritu Suri and no one

else.

148. There is no whisper about the name of Dr. Vinod Rai.

149. Had he been also an attesting witness and was also present when the

concerned Sub-Registrar had come for Registration of Will, his name would

have certainly been mentioned there. The omission in this regard, coupled

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with the manner in which his name is reflected in the last cannot be

overlooked and such facts, virtually, invalidate his presence even at the time

of execution and registration of the Will. Importantly, the Sub-Registrar does

not sign on the last page where only such endorsement and signatures of Dr.

Rai appears. Moreover, if at all, Dr. Rai was there in the hospital, there was

no one to have prevented the Sub Registrar in not mentioning his name on

the Will on the page where Sub-Registrar had given his endorsement.

Moreover, being a doctor, Sub Registrar would have been, naturally,

tempted to enquire from him directly about the health of Testatrix, instead of

merely making reference to some medical certificate.

150. Secondly, both the attesting witnesses i.e. Mukul Bhatnagar and Dr.

Vinod Rai, in their examination-in-chief have not even whispered about the

presence of Ms. Ritu Suri and their cross examination would indicate, as if

they never knew such Ms. Ritu Suri beforehand. Fact remains that prior to

the Will in question, the Testatrix had also executed another Will on

07.10.2002. Such Will is also a registered one. It is though on record, but not

proved by the petitioner. However, if such Will is to be believed then there

were three attesting witnesses even at that time i.e. Dr. Vinod Rai, Mr.

Mukul Bhatnagar and Ms. Ritu Suri. In such a situation, it cannot be

believed that they were not knowing her already.

151. It is also perplexing that none of the attesting witnesses met any of the

family members of the Testatrix at Mool Chand Hospital.

152. The medical record has been placed by Objector only and in his

examination-in-chief, he rather claimed that since intestines of her mother

were blocked and since she had not passed stool for nine days, she was in

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very uncomfortable condition and was hypertense. He also deposed that

because of drugs, his mother was not physically and mentally fit. Thus, the

Objector seems to be in thick of things. He deposed about her medical

condition and he also produced the medical record. There is no challenge to

such testimony in the sense that no other family member has entered into

witness box to rebut the same or to prove the same in discharge of primary

onus.

153. Since, Testatrix was hospitalised and was in a serious condition, her

family members would have been around. However, testimony of attesting

witnesses is conspicuously silent about presence of any such family member

including Mr. Asheesh Vaderaa. They do not see or meet any family

member, at all. This does not look plausible. Assuming that the Testatrix had

sent request directly to them, it does not look believable that these witnesses

would not have even seen any family member at the hospital. At least, one

such other family member should have entered into witness box and should

have assured the Court about the sound disposing condition of the Testatrix.

Mr. Jai Narayan, advocate was also present at the time of alleged execution

and he also did not enter into witness box.

154. I have already referred to the testimony of both the attesting witnesses

and they both deposed that the Testatrix had read out the Will for thirty

minutes. It also seems puzzling and surprising as the Will is not a small one.

It is running into twelve pages and it has not been explained as to why the

Testatrix, while admitted in a hospital and while undergoing treatment,

would have to, herself, read out the entire Will. Such version does not

convince the Court.

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155. As already noticed, the medical record was never produced by the

petitioner or for that matter by Mr. Asheesh Vaderaa. Surprisingly, when Dr.

Thakur entered into witness box, Mr. Asheesh Vaderaa confronted him with

a medical certificate. If he was, at all, having medical record with him, he

should have rather produced the entire record. His selective approach in this

regard conveys something else and who knows even this medical certificate

might have been procured or got prepared, later on.

156. It also needs to be stressed that despite the fact that the medical record

was, rather, produced by the Objector, when the Objector was cross-

examined, certain unexpected questions were put to him. Besides checking

his medical knowledge, which was least warranted, he was asked whether he

was in a position to produce any certificate or prescription or any other

medical record of any doctor of Mool Chand Hospital. Some such questions

and corresponding answers are extracted here:-

“Q Are you in a position to produce any certificate or

prescription or any other medical record of any doctor of

Moolchand Hospital, who treated your mother during her

stay during the period 31.01.2003 to 07.02.2003 wherein it

is mentioned that "your mother was not in sound mind" and

that "her condition was unstable"?

Ans. I have already filed on record all medical documents

with regard to state of mind of deceased and soundness of

medical health. I have no other document to show her other

medical condition.

Q. Are you in a position to produce any certificate of any

treating doctor of your mother wherein it is specifically

mentioned that "your mother was not in sound mind" and

that "her condition was unstable"?

Ans. My answer to this question is as stated above.

It is wrong to suggest that I am avoiding answers to the

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above questions as the same are unfavorable and

inconvenient to me.

Q. Are you in a position to produce any document or show

in any of the documents already produced by you that the

treating doctors of Moolchand Hospital ever advised you

that she should be shifted or admitted to Intensive Care Unit

because of her serious health condition?

Ans. I have already filed all the original medical documents

on record apart from them I have no other medical

document.

It is wrong to suggest that I am avoiding answer to the

above question as the same is unfavorable and inconvenient

to me.

Q Are you in a position to produce any document in support

of your aforesaid statement i.e. to show that on 4th

February, 2003 her pulse rate had gone upto 250 per

minute?

Ans. I did not state that her pulse rate had gone upto 250

per minute However, as per my earlier statement dated

07.12.2015, 1 had mentioned that the pulse rate may have

gone upto 250 per minute because on 04.02.2003 she had

PSVT wherein as per medical knowledge, the pulse rate

goes up till 250 per minute in such conditions.

Q. On 07.12.2015 you stated in answer to my question that

"I can make efforts to produce above said reports" meaning

thereby day to day reports of your mother's health during

the period 31.01.2003 to 07.02.2003 when she was admitted

to Moolchand Hospital.

Did you make any effort to collect those reports for their

production in the court or you did not make any effort?

Ans. I have not brought the above said documents because I

did not make any efforts.

Q I put it to you that while you have produced only the

discharge summary and investigation results of Mrs. Karuna

Raj Vaderaa of Mool Chand Hospital for the period

31.01.2003 to 07.02.2003, you are 'intentionally withholding

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the daily recordings and notes of nurses and treating doctor

with relevant treatment sheets.

Ans. It is wrong.”

157. Thus, though the initial onus is on propounder to show that there is no

suspicious circumstance surrounding the execution of Will and he also has to

demonstrate by convincing and definite evidence that the Testatrix was in

sound disposing condition of, instead of discharging such burden, the above

said questions were put to the Objector, thereby shifting the onus, which is

neither justifiable nor permissible.

158. Moreover, in view of the revelations made by Mr. Amitabh Narayan,

it is not at all clear to the Court, as to which was that Will which the

Testatrix wanted to execute. Moreover, there is some interpolation with

respect to the date appearing on the Will and it not clear whether the Will

was executed on 05.02.2003 or 06.02.2003. In the above said factual matrix,

it was imperative for the petitioner to have rather examined the concerned

Sub-registrar. Interestingly, none of the witness while signing as attesting

witness dared to put date under their respective signatures which also

becomes somewhat unusual in the context of the present case. Is it a sheer

coincidence or a deliberate ploy, remains a puzzle.

159. Undoubtedly, it is entirely the discretion of such maker of the Will to

bequeath the property in the manner it so desires. From such prospective,

this Court would not be tempted to compare the manner in which property

was distributed at the time of earlier registered Will dated 07.10.2002 and in

the Will in question i.e. Will dated 05.02.2003. However, with respect to Will

dated 05.02.2003, there are several concerns which are left unanswered.

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Thus, her testamentary capacity should have been corroborated in much

more effective manner, instead of leaving doubts and dodges.

160. A caveat, right here.

161. Merely because maker of Will is admitted in a hospital would not, ipso

facto, mean that he is not in sound disposing mind. This court does not say

so, at all. Capacity of any such maker to understand the testament cannot be

undermined and understood as impaired, merely on account of old age and

hospitalization. The suspicion arises because of holding back best evidence

and other attendant circumstances. Testatrix had already executed a

registered Will in 2002 and if her condition was not serious, as claimed by

the petitioner, where was the „tearing hurry‟ to get another Will executed in

hospital, more so when she, rather, required surgical intervention.

162. The hush and hurry is the main worry.

163. The discharge summery (Ex. OW1/5) indicates that her condition

became little concerning on 04.02.2003 and she was discharged on

07.02.2003 as she required surgical intervention. She was shifted to another

hospital for better management. In between, the Will has been executed and,

therefore, the court must be provided extra guarantee about her sound

disposing mind on 05.02.2003. It cannot be presumed so, merely because

Will is attested.

164. In Niranjan Umeshchandra Joshi (supra), it has been observed by

Hon‟ble Supreme Court that only the concerned attending doctor can state

about the frame of mind of such maker. Though, Dr. Thakur is stated to be

such doctor, he never certified about medical condition of Testatrix on

05.02.2003 and also never met Sub-Registrar.

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165. The conclusion is, thus, irresistible.

166. The primary onus is always on the propounder to dispel any

suspicious circumstance surrounding the execution of the Will. In Raja Ram

Singh (supra), this Court has, in no uncertain words, observed that it is

settled principle of law that if there is a suspicious circumstance about the

execution of a Will, it is the duty of the person, seeking relief, to dispel any

suspicious circumstance. In Deshraj Gupta (supra), Division Bench of this

Court has observed that the onus probandi lies upon the party propounding

the Will and such party must satisfy the conscience of the Court that the

instrument so propounded is the last Will of the Testatrix. It also observes

that if there are suspicious circumstances, such onus becomes heavy and has

to be satisfactorily discharged. The following observations made in Vijay

Kumar Tiwari (supra) are germane in the present context: -

“21. The law relating to the Wills is clear that the proof

of due execution of Will always lies upon its propounder

who must satisfy the judicial conscience that the

instrument is the last Will of a free and capable testator.

Though no specific standard of proof can be enunciated

which must be applicable to all the cases as every case

depends on its circumstances, courts must be vigilant and

zealous in examining evidence for the reason a Will is a

solemn document and speaks for the dead. Suspicious

circumstances are the presumptions which hold against a

Will. Greater is the suspicion more heavy would be the

onus to be discharged by he who propounds the Will.

Unless suspicious circumstances are satisfactorily

explained by removing the cloud of suspicion, a court

would not readily accept the document propounded as the

last legal and valid testament of the deceased. It may be

true that nature of proof required to prove a Will is not

different from that required to prove other documents

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except the requirement of attestation prescribed under

Section 63 of the Indian Succession Act but it cannot be

lost sight of that what distinguishes a Will from other

documents is that the testator is not available to testify the

same as his last Will. Thus, an element of solemnity is

introduced in the decision. The proof of a Will is to be

tested on the satisfaction of a prudent mind. Unnatural

disposition, improbable or unfair in the light of relevant

circumstances or other indications that the disposition

was not the result of the testator's free Will and mind cast

a very heavy initial onus on the propounder and unless

satisfactorily discharged the court would not be justified

in treating the document as the last Will of the testator. A

sound mind required under Section 59 of the Indian

Succession Act may not mean that the testator should

have his mental faculty in their fullest vigour, but it

means that at least the testator should have the capacity

to understand the nature of his property; memory to

remember the relations and persons normally having

claim on his bounty and also a judgment.”

167. In Benga Behera and Another (supra), the Hon‟ble supreme Court

observed that the existence of suspicious circumstance, itself, may be held to

be sufficient to arrive at a conclusion that the execution of the Will has not

been duly proved. The principles propounded in Meena Pradhan and Others

(supra) have already been extracted in the earlier part of the judgment and

even as per the above said principles and the settled position of law,

wherever there is any suspicion as to the execution of the Will, it is the

responsibility of the propounder to remove those before such Will is

accepted as last Will of the testator. It is also supplemented therein that in

such cases, where there existed any suspicion, the initial onus of the

propounder becomes heavier. In H Venkatachala Iyengar (supra), it is

observed that the test of conscience merely emphasizes that, in determining

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the question as to whether an instrument produced before the court is the last

Will of the testator, the court decides a solemn question and it must be fully

satisfied that it had been validly executed by the testator who is no longer

alive.

168. In the present case, my foregoing discussion would indicate that there

are several suspicious circumstances which have not been explained and

elucidated by the propounder in any manner whatsoever. Though the

propounder is not expected to prove the Will by mathematical precision and

is required to demonstrate execution in terms of the essential statutory

requirements under the Act, where there are specific averments of existence

of suspicious circumstances, Court would expect elimination of such

suspicion by the propounder itself. Only, thereafter, such Will can be taken

as a „validly executed last Will‟. There cannot be any confusion with respect

to discharge of onus. The initial onus is always on propounder which

becomes heavier when the opposite side raises suspicion. The onus on to

adversary would shift only where such adversary pleads forgery, fabrication,

coercion, undue influence etc. Here, the primary and basic onus has not been

discharged to the satisfaction of the court. Various suspicious circumstances

and glaring infirmities in the instant case can be summed up as under: -

a) The Testatrix was admitted in the hospital and such fact is neither

stated in the Will nor in the petition.

b) The petitioner had drafted the Will and such fact was never divulged

during the trial.

c) The Testatrix was earlier admitted in Mool Chand Hospital but since

her condition deteriorated and there was urgent need of surgical

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intervention, she was shifted to Ganga Ram Hospital. In such a

situation, extra assurance was required from petitioner and propounder

about the sound disposing mind of the Testatrix, which is lacking.

d) No family member, except the Objector himself, has entered into

witness box. All others are mute spectators in the trial. Mr. Asheesh

Vaderaa, presumably the one taking care of his ailing mother when

she was in the hospital, also does not bother to enter into witness box.

His shying away from deposing cannot be taken casually. He also

does not feel it sensible to place on record medical documents to

firmly demonstrate that the Testatrix was in a sound disposing mind at

the relevant time. No doctor is called from the said hospital with

relevant record. One official was summoned from the above said

hospital, that too by the Objector, who rather claimed that the record

was no longer available with them.

e) After the first draft of the Will was prepared, the Testatrix, allegedly,

directed to incorporate certain changes and accordingly, another draft

was prepared but as per the propounder himself, the Testatrix had

signed the „first draft‟ as well as the „second draft‟ before the Sub-

Registrar and, therefore, it is not clear as to what was the exact desire

and last testament of the maker of the Will –one mentioned in the first

draft or one in the second draft. Though certain changes may be mere

clerical, there are differences qua bequeath as well, albeit, not very

substantial. The petitioner, who had drafted these Wills, does not grace

the witness box. Thus, the best evidence has been held back and

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primary and initial onus does not stand discharged, merely by

examining the two attesting witnesses.

f) The testimony of two attesting witnesses does not inspire enough of

confidence. There is strong doubt whether Dr. Vinod Rai was,

actually, present when the Will was being registered in the hospital.

g) The deposition of CW1 Dr. Thakur also does not inspire much

confidence as his evidence does not depict his presence at the crucial

juncture i.e. at the time of the execution of the Will in the hospital.

The medical certificate purportedly issued by him has been produced

belatedly and moreover, it, being prior in time, is of not much

consequence.

h) There is nothing to show that the Sub-Registrar had ever contacted

any doctor or had made any inquiry himself from the Testatrix about

her sound disposing mind and health condition. Normally, the Court

does not insist for examination of Sub-Registrar, who discharges his

official duties while registering any such document but in an

exceptional situation like the one here, when a Sub-Registrar was

rather requested to register the Will at hospital, he is under

„indispensable obligation‟ to make himself „sure and certain‟ about the

sound disposing mind of such maker of the Will who is an

octogenarian and admitted in hospital. It is imperative for him not

only to make specific inquiry in this regard from the attending doctor

but also to „personally enquire‟ from such maker about its sound

disposing state. The evidence on record does not suggest so. Mere

reference of one medical certificate, which is not even contemporary,

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is of no avail and cannot be sufficient to hold that Testatrix was

perfectly alright even at execution of Will. The fitting response, if at

all, could have come from such Sub-Registrar but he was not even

called for deposition. To dispel the dark clouds hovering over such

execution, the propounder should have, himself, made a request to call

such Sub-Registrar in Witness Box. Again, the best evidence has been

held back for the reasons, best known to propounder and Mr. Asheesh

Vaderaa. In H Venkatachala Iyengar (supra), a celebrated case which

is frequently cited in probate matters, the Sub-Registrar had gone to

the residence of the maker of the Will who was ill and bed-ridden. The

Hon‟ble Supreme Court observed that non-examination of the

concerned Sub-Registrar, in whose presence the documents was

registered, was to be taken as a circumstance.

i) There is also nothing on record which may indicate as to in what

manner the request, if any, was sent to Sub-Registrar to come at the

Hospital and to register the Will. There is no record to the above said

request. Generally, intimation is sent in advance along with medical

certificate and a copy of the document to be registered but in the

present case, nothing was produced before the Trial Court to show

compliance thereof.

j) Though, this Court may assume that the Sub-Registrar had come at

the hospital, the crucial aspects - whether Testatrix was, actually, in a

sound disposing mind or not and whether such vital fact was duly

inquired into by Sub-Registrar, do not stand duly proved.

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169. Thus, the propounder has miserably failed to discharge its primary

onus and there is mystery surrounding the execution of the Will and

complete lack of assurance about maker, being in sound disposing state.

170. As an upshot of my foregoing discussion, the issue No. 1 is decided

against the petitioner, the onus of which was, even otherwise, on the

petitioner. Since the issue No. 1 is decided against the petitioner, as a

necessary corollary, issue No. 2 is also decided against the petitioner.

171. Resultantly, the present appeal is allowed and judgment dated

08.03.2018 is set aside.

172. All pending applications stand disposed of in aforesaid terms.

MANOJ JAIN, J

March 18, 2025/sw