IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : Indian Succession Act, 1925

Test Cas No.26 of 1987

Decided on : 3rd July, 2012

PARMESHWAR PRASAD (since deceased)

Lord Northbrook & Ors. …… Petitioners

Through: Dr. A.M. Singhvi & Mr. Rajiv Nayyar,

senior Advocates with Mr. Anish

Dayal, Advocate.

Versus

STATE & ORS. …… Respondents

Through: Mr. T.K. Ganju, senior Advocate with

Mr. Manish Singhvi, AAG and

Mr. Aditya Ganju, Advocates for

the State of Rajasthan.

CORAM:

HON’BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This judgment shall dispose of the Probate Petition filed by the

petitioners under Section 276 of the Indian Succession Act, 1925 for grant of

probate on the basis of the Will dated 30.10.1985 read with Codicil dated

7.11.1985. This petition was initiated almost 25 years back and more than

thirty Judges had an occasion to deal with the matter. Though ideally the

petition ought to have been decided within a period of three to four years or

so but there are various factors which have caused the delay. Final delay has

been on account of the voluminous record, some of which was in a very bad

condition.

2. Any how, briefly stated, the facts of the case are that Late Raja

Bahadur Sardar Singh of Khetri (deceased/testator) had very high

credentials. He was a Bar at law from England, a member of the Constituent

Assembly, a Rajya Sabha Member and also Ambassador to Laos and thus, a

highly educated person. He died on 28.1.1987 as a childless widower and at

that time, he was a resident of 5, Sardar Patel Marg, New Delhi. It is alleged

that being a childless widower with no legal heirs and with a high sense of

social service, he bequeathed his property to charity for the benefit of public

at large, by virtue of Will dated 30.10.1985. For this purpose, he got the

Will drafted by his personal friend, Daniel Latifi, Senior Advocate and got

the same attested by two persons, one P.N. Khanna, his Chartered

Accountant and R.K. Singh, junior of Daniel Latifi. He is further stated to

have got it deposited with the Registrar at Tis Hazari Courts. On 7.11.1985,

he allegedly executed a Codicil. The alleged Will of the deceased/Testator

reads as under:-

“THIS IS THE LAST WILL AND TESTAMENT OF ME, Raja Bahadur

Sardar Singh of Khetri, aged 65, residing at No.5 Sardar Patel Road, New

Delhi-110021

AND I HEREBY CANCEL AND REVOKE all my previous Wills and

Codicils.

WHEREAS

A. I am a citizen of India, subject to the Hindu Law of Succession, and

am, under the appropriate provisions of the Indian Succession Act and other

laws, fully competent to make this Will and to create the Trusts herein.

B. I have no relative of the class mentioned in Section 118 of the Indian

Succession Act. Nevertheless, to avoid any false claims, it is my intention to

have this Will deposited in safe custody with the appropriate authority as

provided by law.

C. I am possessed of immovable and movable assets as appear from my

Wealth Tax Returns.1

NOW

1. I hereby appoint the following persons to be and to act Jointly as

Executors hereof, provided that they may by unanimity, appoint from time to

time one of their number as Managing Executor:

(a) Lady Olga Manning of Hampton Court palace, East Molesey, Surrey.

(b) Mr. Daniel Latifi, Senior Advocate, A-20, Neeti Bagh, New Delhi-

110049

(c) Mr. Romesh Thapar, 19, Kautilya Marg, New Delhi-110021

(d) Mr. Parmeshwar Prashad, Mgr. Khetri Investment Corporation (P)

Ltd., 1/9, Rani Jhansi Road, New Delhi-110005.

2. I also appoint the said Executors to be Trustees of the Trust hereby

created.

3. I hereby bequeath and given unto and to my said Executors and

Trustees, (save and except such specific assets on properties of mine as I

may exclude herefrom by any specific legacy that I may, hereafter make in

favour of any person, by this Will or by any Codicil hereto that I may make).

ALL THOSE my properties, movable or immovable, anywhere, upon trust

as below appears.2

4. The name of the Trust shall be the KHETRI TRUST.

5. The Trusts herein are:

The promotion of Education, that is to say the advancement of the

study of science, literature and the arts, by the grant of scholarships to

deserving students for study in India or abroad, by the establishment of

libraries, reading rooms, schools, academics, laboratories, research centres

or other institutions, as funds allow and as the Trustees think fit.

Provided that the Trustees shall be competent, with the sanction of the

High Court, to vary, enlarge or restrict the objects of this Trust.

6. The Executors and Trustees shall be entitled to remuneration for their

services to these Trusts at such amount for their services to these Trusts at

such amount as they may fix, not exceeding Rs.3,000/- per month. This

may, in appropriate circumstances, be increased with the sanction of the

High Court, upon application made in that behalf. Whenever she is in India,

Lady Manning shall be entitled to free residence and travel at and between

Khetri House New Delhi, Khetri house Jaipur and Sukh Mahal Khetri, with

arrangements and facilities as she enjoyed in my lifetime.

7. The number of Trustees shall not at any time be fewer than three not

more than five. In the event of the death, resignation or incapacity of any

Trustee, the surviving or remaining Trustees shall be empowered to appoint

a trustee or trustees in this behalf. Provided that on the death, resignation or

incapacity of Lady Manning, named in paragraph 1 hereinabove, the Hon

Francis Baring, s/o Lord & Lady Northbrook, East Stratton House, East

Stratton, Winchester, Hants, residing at Flat No.26, 333 Kings Rd., London

SW3 shall replace here as Executor and Trustee.

IN WITNESS WHEREOF I HAVE HERETO SET MY HAND THIS

THIRTIETH DAY OF OCTOBER 1985 AT NEW DELHI, in the present of

witnesses known to me whose names, addresses and signatures appear

below.

Sd/-

RAJA BAHADUR SARDAR

SINGH OF KHETRI

WITNESSES:

1. sd/-

(P.N. Khanna)

14/15 F, Connaught Place,

New Delhi-1

2. sd/-

(Ravi Karan Singh)

Advocate

C/o 61, Supreme Court

New Delhi-1”

3. According to the Will, Lady Olga Manning of Hampton Court Palace,

East Molesey Surrey, U.K., Daniel Latifi, Senior Advocate, r/o A-20, Neeti

Bagh, New Delhi, and Parmeshwar Prasad, Manager, Khetri Investment

Corporation (P) Ltd., r/o 1/9, Rani Jhansi Road, New Delhi, were named as

Executors of the said Will.

4. Parmeshwar Prasad, petitioner No.1 died on 09.3.2003, petitioner

No.2, Ramesh Thapar died in 1987, petitioner No.3, Lady Olga Manning

died on 17.9.1993 and as per the clause 7 of the Will, the executor and the

trustee were replaced by Lord Northbrook and he was substituted as

petitioner vide order dated 24.2.1995 in I.A. no.1695/95. Lord Northbrook is

the surviving Executor and currently the petitioner before this Court, though

no formal order for change of title of the case has been passed nor any

amended memo of parties has been filed. But as Parmeshwar Prasad has

died, Lord Northbrook’s name is substituted in exercise of inherent powers

of this Court to put the record straight. His statement before this Court was

recorded on 25.9.2004, when he was personally present in Court. He had

executed a Power of Attorney in favour of one Prithvi Raj Singh to represent

him in Court as he was resident of U.K. Daniel Latifi, Senior Advocate also

resigned as Executor on 15.2.1987, before this petition was filed.

5. According to the Will, as averred by the Executors, the entire

properties, situated anywhere, movable and immovable, belonging to the

Raja Bahadur, were bequeathed in favour of a Trust by the name of Khetri

Trust. The said Trust was created for the benefit of the public at large and

for purpose of promotion of education, that is to say, advancement of studies

of Science, Literature and Arts, by the grant of scholarships to deserving

students for study in India or abroad, by the establishment of libraries,

reading rooms, schools, academics, laboratories, research centres or other

institutions, as the funds would allow and the Trustees would think fit. All

the Executors and the Trustees were to be paid remuneration for their

services at a fixed rate, not exceeding Rs.3,000/- per month.

6. After the death of Raja Bahadur, the three Executors, namely,

Parmeshwar Prasad, Ramesh Thapar and Lady Olga Manning filed a petition

jointly as Executors of the Will. The deceased/testator died on 28.1.1987 and

Daniel Latifi resigned from the Trust, in February, 1987, and the petition

was filed in March, 1987. No cogent reason for resignation has been given.

7. So far as the Khetri Trust is concerned, it was created on 31.1.1987.

The Trust Deed was executed on 14.4.1987. Eminent persons like Bhaskar

Mitter-Chairman Exide Ltd., Mr. Narottam Sehgal-ICS Former Home

Secretary to Govt. of India, Dr. Romila Thapar, the Eminent Historian,

Vikram Lal-Chairman Eicher Ltd., have held the post of Trustees of the

Khetri Trust. None of the Trustee was alleged to have been made as the

sole controller. Over a period of time, these Trustees changed and as on

8.7.2003 Lord Northbrook was made the Executor Trustee of the Will, being

son of Lady Olga Manning, apart from Maharaj Gaj Singh of Jodhpur,

Chairman, Prithvi Raj Singh, Managing Trustee and Ajit Singh.

8. The Trustees of the Trust may have interest in the grant of probate,

although they are not parties to the petition. There are three applications

bearing I.A. Nos.5737-5739/2009, dated 30.4.2009, which are pending

adjudication.

9. So far as I.A. No.5737/2009 is concerned, it is for impleadment of the

Trustees of Khetri Trust as a party. So far as second application bearing

No.5738/2009 is concerned, it is for substitution of list of properties attached

to the probate petition. This application was filed by the petitioners on the

ground that after filing of the testamentary petition, the petitioners are

purported to have come across number of other properties which were

belonging to the deceased/Testator and, therefore, wanted to include the

same in the list of properties. The third application bearing I.A. No.5739 of

2009 is for seeking permission from the court to lease out property at 5,

Sardar Patel Marg, New Delhi, in order to generate income for the purpose

of Trust. All these three applications were pending from the year 2009 in

the vain hope that these will be taken up at the time of final disposal. But as

the matter is now being disposed of, therefore, these applications will also be

dealt with.

10. So far as I.A. No.5737/2009 for impleading the Trustees are

concerned, I feel that there ought to be no objection to allow the said

application because ultimately, it is the trustees who have to implement and

execute the wishes of the deceased/testator, if the probate/letter of

administration is granted. Therefore, in my view, this application deserves to

be allowed.

11. One of the applications which is pending for adjudication is regarding

permitting the petitioners to amend the schedule of properties. In this, the

learned counsel for the petitioners has contended that after the filing of the

probate petition, the petitioners learnt about some other properties belonging

to the deceased/testator, details of which are annexed along with the

application which was not given in the schedule attached to the probate

petition. It has been stated that this was on account of an inadvertent

mistake as they were not aware of these properties belonging to the

deceased/testator. The application was opposed by the objectors. It was

averred by the respondents that the petitioners have not given the correct

account of all the inventories left behind by the deceased/testator. In this

regard, it was contended that no details of the bank account, fixed deposits

and jewellery articles have been furnished. It has also been stated that

admittedly, the deceased/testator at the time of his death in Bombay, was

living at 5, Sardar Patel Marg, New Delhi.

12. I have carefully considered this submission made by the respective

sides and gone through the judgments in case titled Basudeo Dalmia & Anr.

Vs. The State and Ors. MANU/DE/1542/2010 and Vinoo Bhagar Vs. Anita

Rewal 1980 RLR 245.

13. Both these cases have been relied upon by the learned counsel for the

petitioners for amendment of the schedule of the properties.

14. I have gone through these judgments. I feel that because of these

judgments, there is absolutely no justification in denying the prayer sought

by the petitioners seeking amendment of the schedule of the properties as, at

the time of filing of the petition, the petitioners on account of an inadvertent

mistake may not have been aware of the details of the other movable or

immovable properties which are sought to be included in the schedule to the

probate petition. So far as the stand taken by the respondents that no details

of the bank account, fixed deposits and jewellery articles have been given, I

am of the view that merely because such details have not been given does

not necessarily mean that the petitioners could not be permitted to give

details in case they were aware of the same. It is well possible that the

petitioners themselves may not be aware of the details of the bank account,

fixed deposits and jewellery articles or it is also possible that the

deceased/testator may have during his life time disposed of or gifted all

these items leaving hardly anything to be bequeathed by virtue of the Will in

question. Therefore, I feel that there is absolutely no reason to disallow the

prayer which has been made by the petitioners for seeking amendment of the

schedule to the probate petition. Accordingly, the IA No.5738/2009 is

allowed and the petitioners are permitted to amend the schedule of the

properties attached to the probate petition.

15. This leave us with the third application bearing No.5739/2009 seeking

permission to let out 5, Sardar Patel Marg, so that income is generated for

the benefit of the Trust. I feel, since this application has remained pending

for the last three years and now that the main petition is being decided, this

can await the outcome of the same.

16. After filing of the probate petition, a number of objections were filed

in response to the citation published in the ‘Statesman’ on 17.4.1987, which

had a wide circulation including in the State of Rajasthan, where most of the

properties were situated. These objections were filed by the persons,

namely, Rajender Singh, who died after filing of the objection and was

represented by his legal heirs, Hemender Singh, Nagender Singh and Shobha

Kanwar. The other objections were filed by Arjun Singh, Surender Singh,

Narender Singh, Laxman Singh, Dwarka Prasad Parekh and Raghuvir Singh.

Out of these objectors, except Raghuvir Singh, the rest of the objectors

withdrew their objections by filing applications before the court on

10.2.2009. So far as Raghuvir Singh is concerned, he was stated to be

incarcerated in connection with some criminal case registered against him in

Jaipur Central Jail, who initially persisted with his objections and made

allegations that the Khetri Trust and other entities had fraudulently

fabricated documents and sold various properties of Raja’s Estate, a number

of times, however, before the start of arguments on the merits of the petition,

Raghuvir Singh also withdrew his objections.

17. It was alleged by the learned counsel for the petitioners that these

objections were filed by a consortium in collusion with land mafia of Delhi,

Rajasthan and Haryana who got involved in illegal sale of several properties

while as Mr. Ganju, the learned senior counsel contended that the very fact

that there were number of objectors to the grant of probate and all of them

withdrew the objections gradually, is indicative of the fact that there is

something more than what meets the eye. It was contended that these

objections could not have been withdrawn without some consideration

having been paid to all the objectors.

18. The State of Rajasthan had filed an application bearing I.A.

No.867/95 for being impleaded as a party on account of bona vacantia for

want of rightful owner and the fact that it had taken possession of some of

the properties in Jaipur to preserve them under the Rajasthan Escheat

Regulation Act, 1956 and therefore, it was necessary as well as proper party.

The learned Single Judge rejected the application of the State of Rajasthan

for impleadment on the ground that an application seeking similar relief filed

by some third party had already been rejected by the Court. Feeling

aggrieved, the State of Rajasthan preferred an appeal. The State of Rajasthan

was impleaded as a party to the testamentary petition by virtue of the order

dated 8.11.1996 passed by the Division Bench in F.A.O. (OS) No.166 of

1996 but it was only permitted to address arguments on the basis of the

existing record and it did not have the right to lead any evidence. The State

of Rajasthan is alleged to have taken possession of most of the properties of

Raja Bahadur under the Rajasthan Escheat Regulation Act, 1956. It has also

been brought to the notice of the court that a writ petition against the said

proceedings, initiated by the Khetri Trust is pending in the Rajasthan High

Court, which has been adjourned sine die. As on date, the State of Rajasthan

is the main contesting party to the grant of probate to the petitioners.

Though, no evidence has been permitted to be produced by it, but has been

permitted to address arguments on the basis of the evidence adduced by the

petitioners and the witnesses produced by the respondents/objectors who

have latter on chosen to withdraw their objections.

19. The court, after the receipt of the objections from different persons,

had framed the following issues on 21.9.1987 :-

“1. Whether the Will dated 30th October, 1985 and the Codicil dated 7th

November, 1985 propounded by the petitioners had been validly executed by

Raja Bahadur Singh of Khetri (deceased) while possessed of sound

disposing mind?

2. Relief.”

Evidence of the parties:

20. The petitioners, in order to prove the Will have examined PW-1, P.N.

Khanna, who is purported to be one of the attesting witness to the Will and

Codicil; PW-2, Parmeshwar Prasad, Manager of the Khetri Trust of Late

Raja Bahadur, the petitioner herein and PW-3, Daniel Latifi, Senior

Advocate, stated to be a personal friend of Late Raja Bahadur and was

Advisor to him on his legal matters. He is also the person who had scribed

the Will. He was examined by the petitioners in rebuttal after the

respondents/objectors had examined the other attesting witness, RW-8, R.K.

Singh.

21. So far as the respondents are concerned, they, in support of their

objections, have examined RW-1, Badri Narain Nayak, General Secretary of

All-India Anti-Corruption Society; RW-2, Kailash Narain Rawat, Tehsildar,

Jaipur, who had testified confirming that an order under the Rajasthan

Escheat Regulation Act, 1956 was passed in respect of the properties of Late

Raja Bahadur as he had died issueless; RW-3, Dwarka Prasad, head of the

family and in occupation of the portion of Khetri House. RW-4, Rajender

Singh, an Objector and purported relative of the deceased/Testator; RW-5,

Jaswant Singh, bearer/table boy with Raja Saheb; RW-6, Gopal Singh,

driver of Raja Saheb; RW-7, Kusum Lata, LDC from the Office of Sub-

Registrar, Tis Hazari Courts, who produced the Will of the

deceased/Testator as the same was deposited in the Officer of Registrar;

RW-8, Ravi Karan Singh, an advocate and junior of Daniel Latifi, who was

attesting witness to the Will and the Codicil, who has not supported the case

of the petitioners and denied having attested the Will in presence of Late

Raja Saheb.

22. The entire thing revolves on the question as to whether the Will dated

30.10.1985 and Codicil dated 7.11.85, purported to have been executed by

the deceased/Testator, are duly proved in accordance with law and whether

they were executed by the deceased/Testator by his own independent will in

the presence of two attesting witnesses so as to bequeath all his movable and

immovable properties in favour of the Khetri Trust. In this regard, the

testimony of two attesting witnesses, PW-1/P.N.Khanna and RW-

8/R.K.Singh, who have been produced by the respective sides, becomes

important. In addition to this, the testimonies which will be helpful in

determination of the issue whether the Will was genuine or not, would be the

testimonies of PW-2, Parmeshwar Prasad, Manager of Late Raja Bahadur;

PW-3, Daniel Latifi, Senior Advocate and a friend of deceased/Testator; and

RW-7, Kusum Lata, an official witness, who had produced the original Will

from the sub-Registrar’s office.

23. Before analyzing the testimonies of these witnesses, it would be

worthwhile to reproduce Section 63 of the Indian Succession Act, 1925 and

Section 68 of the Evidence Act, 1872 which deal with the proof of execution

of documents required by law to be attested.

“Section 63. Execution of unprivileged Wills.

(c) The Will shall be attested by two or more witnesses, each of whom has

seen the testator sign, or affix his mark to the Will or has seen some other

person sign the Will, in the presence by direction of the testator or has

received from the testator a personal acknowledgement of his signature or

mark, or of the signature of the such other person and each of the witnesses

shall sign the Will in the presence of the testator, but it shall not be

necessary that more than one witness be present at the same time, and no

particular form of attestation shall be necessary.”

Section 68 Proof of execution of document required by law to be

attested - If a document is required by law to be attested, it shall not be used

as evidence until one attesting witness at least has been called for the

purpose of proving its execution, if there by an attesting witness alive, and

subject to the process of the Court and capable of giving evidence:

[Provided that it shall not be necessary to call an attesting witness in proof of

the execution of any document, not being a Will, which has been registered

in accordance with the provision of the Indian Registration Act, 1908 (16 of

1908), unless its execution by the person by whom it purports to have been

executed is specifically denied.]”

Proof of Will dated 30.10.1985

24. The probate petition is supported by an affidavit of one of the

attesting witness, PW-1, P.N. Khanna. It is not in dispute that there are two

attesting witnesses, P.N. Khanna (PW1) and R.K. Singh (RW-8), to the Will

purported to have been made by the deceased/testator. According to the

aforesaid two Sections, if a document is required to be attested by law then it

shall not be deemed to have been proved until one of the attesting witness

has been called for the purpose of proving the said document, if the attesting

witnesses are alive.

25. The petitioners in order to prove the Will have to establish the

following facts:-

(i) that the Will dated 30.10.85 is the last Will of the deceased/testator Raja

Bahadur Sardar Singh of Khetri.

(ii) the said Will was signed by him in the presence of two attesting

witnesses namely P.N. Khanna (PW1) and R.K. Singh (RW-8) or has

received from the testator personal acknowledgement that he has put his

signature or mark on the same.

(iii) That the deceased/testator at the time of making the Will, was in sound

disposing mind.

(iv) That all the three persons had put the signatures on the Will in the

presence of each other and simultaneously.

26. The petitioners in order to prove the Will have examined the witness

P.K. Khanna, as PW-1. He has testified that the deceased/testator Raja

Bahadur Sardar Singh of Khetri had executed a Will Exhibit P-1 at Tis

Hazari, Delhi outside the Registrar’s office. According to his testimony, he

was a practicing Chartered Accountant since 1947 and was representing the

deceased/testator in his Income Tax and Wealth Tax matters before the

appropriate authority. He had stated that on 30.10.85, he had reached at Tis

Hazari Courts at 10.00 a.m., where R.K. Singh, the deceased/testator and 4-5

other staff members, namely, Gokul Anand, Personal Assistant, driver of

Raja Bahadur Sardar Singh of Khetri and the other two staff members were

present. It is stated by him that the draft of the typed Will Exhibit P-1

was brought by the deceased/testator himself, who in his presence and the

presence of RW-8 has put his signatures at portion of side line ‘C’. It is

further stated by him that simultaneously, PW-1 and RW-8 also appended

their signatures. He has also stated that he remained present throughout. That

means, from the time when the deceased/testator arrived and till he

completed the formalities.

27. After signing of the Will, the deceased/testator with the help of a staff

member is stated to have deposited the Will in the Registrar’s office and the

envelope was also signed by him which is Exhibit P-2. In his cross

examination, he has stated that as far as he recollects, there were two copies

of Exhibit P-1 of the Will, one was deposited in a sealed cover Exhibit P-2

with the Registrar and the other one was retained by the deceased/testator.

He has also admitted that there could be more copies, which he might have

signed. He has also testified that on 7.11.1985, he visited the house of the

deceased/testator and signed the Codicil Exhibit P-3 when the

deceased/testator was sitting in sitting cum bedroom. He stated that RW-8,

R.K. Singh, also signed the Codicil around the same time. He expressed his

ignorance about the fact as to whether PW-2, Parmeshwar Prasad, one of the

petitioners was being paid salary of Rs.2000-3000/- on monthly basis or not.

He has also denied the knowledge of the fact as to whether under the Will,

Parmeshwar Prasad was to get a sum of Rs.3,000/-, though, he has admitted

that Parmeshwar Prasad was known to him.

28. So far as the fitness of the deceased/testator to make the Will is

concerned, he has denied any knowledge about his ailment. He has not

stated anything either in examination-in-chief or cross examination which

will make the Court draw any inference that the deceased/testator was not of

sound disposition to make the Will.

29. As against this, the objectors have produced R.K.Singh the other

attesting witness in support of their case, who appeared as RW-8. He has

stated that Exhibit P-1 bears his signatures at portion ‘B’. He has also

stated that he was working at the relevant time as the junior to Daniel Latifi,

Senior Advocate and on his instructions on 29.10.85, had gone to 5, Sardar

Patel Marg, New Delhi and introduced himself to one Mr. Prasad referring

to Parmeshwar Prasad and on his asking, he signed the document at places

mentioned above. He has also admitted his signatures on Exhibits P-2 and

P-3. He has also stated that at the time when he puts his signatures on

Exhibit P-1, there was nobody else present at the house of deceased testator

except PW-2, Parmeshwar Prasad. He has also admitted that he had gone to

Tis Hazari, on the asking of PW-2 where some papers were kept in the safe

custody on the asking of Parmeshwar Prasad and he had signed the sealed

cover Exhibit P-2 also. If one examines minutely, it shows that though the

Exhibit P-1 is signed in blue ink, while as Exhibit P-2 is signed with black

ink. One of the explanations for these two different inks could be that

Exhibit P-1 was signed on 29.10.1985 at 5, Sardar Patel Marg, New Delhi,

while as Exhibit P-2 was signed by him on 30.10.1985 at Tis Hazari, Delhi,

therefore, unwittingly, two differtent pens were used. Conversely, it is very

unlikely that a person would use two different pens/inks unless and until

something goes wrong with the pen itself.

30. So far as the Codicil Exhibit P-3 is concerned, it is stated by him that

he had signed the same in the chamber of Daniel Latifi, PW-3, when it was

brought by PW-2, Parmeshwar Prasad.

31. In his cross examination, he has stated that he had never seen Raja

Bahadur Sardar Singh of Khetri, who is purported to have signed the

document Exhibit P1 to P-3. He has also identified the signatures of Daniel

Latifi as senior advocate on bill Exhibit RW-8/PA.

32. In his cross examination, he has also denied that he has received a

sum of Rs.1,000/- by way of a cheque for the purpose of checking the draft

of the Will. He has admitted his signatures on the Codicil also. However,

he denied that he knew P.N. Khanna, CA (PW-1).

33. It is also denied by him in the suggestion that he was present along

with P.N. Khanna (PW-1) on 29.10.85 and 7.11.85 at the residence of Raja

Bahadur Sardar Singh of Khetri, the deceased/testator. He has also denied

that he has testified at the instance of the objector, as he has been won over.

34. A perusal of these two testimonies shows that either of them is telling

a lie because the testimony of both these witnesses is dramatically opposite.

It is in this background that the testimony of PW-3, Daniel Latifi, the senior

advocate who is the scribe of the Will and at whose instance PW-8, R.K.

Singh, his junior had become a witness to the Will, becomes most crucial.

35. If one goes through the testimony of PW-3/Daniel Latifi, he has stated

that he was present physically along with the deceased/testator at the time of

keeping the Will with the Registrar at Tis Hazari Courts. He has also stated

that Raja Bahadur Sardar Singh of Khetri was his personal friend and,

therefore, he had accompanied him to Tis Hazari on 30.10.1985. He has

also stated that probably R.K. Singh (RW-8) was there but he was not sure.

He has also stated that he had signed the original Will and was very

emphatic in giving answers in affirmative in this regard. But all these facts

clearly show that his testimony is not corroborated either orally by the other

attesting witnesses of the Will or even by the circumstances.

36. If we examine the testimony of these three witnesses together then

one thing becomes clear that the Will of the deceased/testator has not been

signed by the deceased/testator along with the attesting witnesses.

37. Secondly, it is doubtful if it has been signed on 30.10.1985 by the

deceased/testator and thirdly, that all of them were not present at the time of

signatures at Tis Hazari. This is evident from the fact that PW-1 is very

emphatic and clear that he had gone to Tis Hazari Court on 30.10.85 at 10.00

am and the deceased/testator along with his staff members namely Gokul

Anand, two attendants, driver were present. He has also stated that R.K.

Singh (RW-8) was also present. But he does not name Daniel Latifi (PW-3)

as the person who was present, as claimed by him. Daniel Latifi was a tall

person and he being a senior advocate, his presence would have been

conspicuous which could not have gone unnoticed though he has stated that

he was present in his personal and professional capacity. But if we believe,

the testimony of PW-1 then not only the deceased/testator appended his

signatures in the presence of PW-1 but also in the presence of R.K. Singh,

RW-8, but this is not borne out from the testimony of the other two

witnesses because PW-1 shows that he was present throughout the time so

long as the deceased/testator remained there, but he does not name Daniel

Latifi, senior counsel as a person, who was also present at Tis Hazari Courts.

It may be possible that he was not aware of the name of Daniel Latifi, PW-3

but at least he would have certainly said that a friend of the deceased/testator

was also accompanying him.

38. In addition to this, the testimony of PW-1 is to the effect that R.K.

Singh (RW-8) was present, gets belied by the fact that Daniel Latifi, PW-3,

himself has stated that he is not sure whether R.K. Singh (RW-8) was

present on 30.10.85 at Tis Hazari Court and this gets further fortified by the

fact that R.K. Singh (RW-8) in his examination in chief is very categorical to

say that on the instructions of the learned senior counsel, namely Daniel

Latifi, he had gone on 29.10.85 to 5, Sardar Patel Marg, New Delhi where he

had appended his signatures on certain documents at the instance of

Parmeshwar Prasad; meaning thereby, that he had put his signatures at the

instance of Parmeshwar Prasad, PW-2 in terms of the directions given by his

senior counsel. Obviously, at that point of time, neither the

deceased/testator nor P.N. Khanna (PW-1) were present. Further, if we

believe PW-3 regarding the events on 30.10.85 then RW-8 was not present

on that day while as RW-8 say that he went to Tis Hazari on 30.10.85,

though he had signed the Will on the previous day. R.K. Singh, RW-8 does

not talk about the presence of PW-3, Daniel Latifi on 30.10.85. Therefore,

one thing is clear that PW-3 was not present on 30.10.85 at Tis Hazari;

Secondly, RW-8, R.K. Singh, had signed the Will on 29.10.85 and not on

30.10.85 as claimed by PW-1 P.N. Khanna and thirdly, at the time when

RW-8 signed the Will, the deceased/testator was not present nor did the

deceased/testator admit his signatures on the Will to RW-8 because R.K.

Singh, RW-8, is categorical that he has not seen him at all.

39. If that be so, certainly, it is established by the preponderance of

probability that PW-1 is not truthful and he is lying both with regard to the

factum of the presence of all three persons on 30.10.85 as well as the factum

of all three of them having put their signatures simultaneously and it is not

safe to rely on his testimony.

40. If that be so, certainly, it cannot be said with certainty that the Will

dated 30.10.1985 is genuine and the Will is proved in accordance with

Section 63 of the Indian Succession Act read with Section 68 of the

Evidence Act.

41. Mr. Dayal, the learned counsel for the petitioners, so far as the law

regarding grant of probate is concerned, has referred to a case titled Daulat

Ram & Ors. Vs. Sodha & Ors. (2005) 2 SCC 40, wherein it has been held by

the Apex Court as under:-

“10. Will being a document has to be proved by primary evidence except

where the court permits a document to be proved by leading secondary

evidence. Since it is required to be attested, as provided in Section 68 of the

Indian Evidence Act, 1872, it cannot be used as evidence until one of the

attesting witnesses at least has been called for the purpose of proving its

execution, if there be an attesting witness alive, and subject to the process of

the Court and capable of giving evidence. In addition, it has to satisfy the

requirements of Section 63 of the Indian Succession Act, 1925. In order to

document, the propounder has to show that the Will was signed by the

testator and that he had put his signatures to the testament of his own free

will; that he was at the relevant time in a sound disposing state of mind and

understood the nature and effect of the dispositions and that the testator had

signed it in the presence of two witnesses who attested it in his presence and

in the presence of each other. Once these elements are established, the onus

which rests on the propounder is discharged. But where there are suspicious

circumstances, the onus is on the propounder to remove the suspicion by

leading appropriate evidence. The burden to prove that the Will was forged

or that it was obtained under undue influence or coercion or by playing a

fraud is on the person who alleges it to be so.”

42. Another judgment cited by Mr.Dayal, the learned counsel was Gurdev

Kaur & Ors. Vs. Kaki & Ors. (2007) 1 SCC 546, wherein it was held that if

a Will appears on the face of it, to have been duly executed and attested in

accordance with the requirement of the statute, a presumption of due

execution and attestation applies.

43. There is no dispute with this preposition, if it appears from the face of

the Will that it has been duly executed and attested in accordance with the

requirement of the statute, a presumption of due execution and attestation

may be drawn but this presumption will have to be drawn in the light of the

facts and circumstances of the case as it emerges from the testimony of the

attesting witness(s) who are produced.

44. In this context, another judgment have been relied upon by the learned

counsel for the petitioners, which is Mathew Vs. Devassykutty & Ors. AIR

1988 Kerala 315, wherein it was held that if one of the attesting witnesses is

denying the attestation of the Will in testator’s presence and otherwise, the

Will is rational and executed in sound mental state and the Legatees be

granted letters of administration then the Will, will be deemed to have been

proved.

45. In the facts of the said case, the elder son was totally disinherited as

he had already been amply provided by the testator and it was observed that

his disinheritance would not affect the validity of the Will when one of the

attesting witnesses has categorically stated that he and the other attesting

witnesses attested the Will in the presence of the testator and saw the signing

of the Will but one of the attesting witness has stated that the Will was not

attested by him in the presence of the testator.

46. Similarly, Mr. Dayal, had also referred to a judgment of Andhra

Pradesh High Court in case titled Bandaru Veeramma & Ors Vs. Chirravuri

Ramakrishna Sarma & Ors. AIR 1976 Andhra Pradesh 370, wherein it was

held that in the event of a attesting witness being declared hostile, it is

presumable for the propounder of the Will to cross examine such an

attesting witness and it will also be legitimate for such a propounder to rely

upon the evidence to show that the Will has been properly executed.

47. These judgments have been relied upon by the learned counsel for the

petitioners to contend that as in the instant case, RW-8/R.K. Singh, the

second attesting witness has sought to testify in a manner which will

demolish the testimony of PW-1/P.N. Khanna with regard to the attestation

and signature on the Will, by saying that he had signed the Will at the

residence of the deceased/testator i.e. 5 Sardar Patel Marg, New Delhi-

110021 and that too on 29.10.1985 while as, the case of the petitioners is

that the deceased/testator had made a Will on 30.10.85 at Tis Hazari, where

he had put his signatures in the presence of both the attesting witnesses and

therefore, his testimony deserves to be excluded. It was urged that the

testimony of this witness was actuated by mala fides. He wanted to testify in

favour of the objectors because they have influenced him. It was urged that

the testimony of RW-8 is unreliable, be discarded completely in the light of

the testimony of PW-3, Daniel Latifi/ the scribe of the Will who happened to

be the senior counsel coupled with the testimony of PW-1 who has fully

proved the Will and therefore, a presumption with regard to the proof of the

Will under these circumstances can be drawn.

48. I am not impressed by this submission made by Mr.Dayal, the learned

counsel, that merely because RW-8 has not supported the testimony of the

other attesting witness PW1, with regard to the place of signing and the date

of signing, therefore, his testimony deserves to be discarded. RW-8, R.K.

Singh, cannot also be said to be a hostile witness merely because he has not

deposed the way the petitioners would have liked him to depose. Secondly,

a witness could be declared as hostile only by the party who has produced

him as it gives such a party the right to cross-examine the witness. In the

instant case, RW-8, R.K. Singh, has not been produced by the petitioners,

therefore, he cannot be said to be hostile so far as the petitioners are

concerned as per the Evidence Act.

49. On the contrary, it is established by preponderance of probability that

not only the date of signing the Will, the place of signing the Will is also

doubtful as well as the signing of the Will by all three of them,

simultaneously, itself is under doubt. This is so, if we were to analyze the

testimony of PW-1 and PW-3, the scribe of the Will and RW-8, R.K. Singh.

50. I have hereinabove referred in detail that PW-1/P.N. Khanna is

admittedly, the CA of the deceased/testator who was attending to his

financial matters. He is very emphatic and clear that he had put the

signatures on the Will in duplicate on 30.10.85 at Tis Hazari in the presence

of the deceased/testator. He is also very clear that the deceased/testator was

accompanied by 4-5 persons, one of whom was a driver and the other

attendant, namely, Mr.Gokul Anand and Parmeshwar Prasad and he

remained present throughout; that means, from the time of signing of the

Will till the time the deceased/testator might have left. He does not name

PW-3, Daniel Latifi, as the person who was present at the time of signing at

Tis Hazari while as Daniel Latifi says that he had accompanied the

deceased/testator to Tis Hazari. PW-1 also in his cross examination is

doubtful as to whether he signed only two copies of the Will or more and

said that it could be more. As against this, he was also very emphatic that

RW-8 also puts his signatures at Tis Hazari while as, RW-8/R.K. Singh in

his examination-in-chief and cross examination has stood his ground firmly

by stating that he had signed the Will on 29.10.85 at 5, Sardar Patel Marg,

New Delhi. He was also given suggestions by the petitioners to the effect

that he signed the Will at 5, Sardar Patel Marg, New Delhi on 29.10.85; that

means, the petitioners themselves are admitting at least one fact that RW-8

had signed the Will at 5, Sardar Patel Marg, New Delhi. Further RW-8

states that he had not seen the deceased/testator at the time of signing of the

Will and he simply puts signatures on some documents at the instance of one

‘Prasad’, obviously referring to Parmeshwar Prasad. He has also stated that

the Codicil Exhibit P-3 is signed by him on 07.11.85 at the Chamber of PW-

3, Daniel Latifi and not in the presence of PW-1, P.N. Khanna or the

deceased/testator. Therefore, in the light of this scenario, one thing is clear

that the Will and the codicil are not signed by all the persons simultaneously,

either at Tis Hazari or at 5, Sardar Patel Marg, New Delhi, and secondly, if

one assumes that the Will was signed at Tis Hazari then obviously, it

becomes doubtful that all three of them have put signatures simultaneously

because of the testimony of RW-8, R.K. Singh, for which, in my view, there

is no reason to discard his testimony as he has nothing to gain personally.

51. So far as the signing of the Will on 30.10.85 at Tis Hazari is

concerned, it further becomes doubtful because both PW-1 and PW-3 are

claiming to be present on the said date at Tis Hazari, yet each one of them

did not see each other or give the names of each other. Therefore, both of

them could not have been present and one of them is at least not giving the

correct picture. PW-3, Daniel Latifi also said that he has put his signatures

on the Will on 30.10.85 at Tis Hazari while as the signatures are not

appearing on any of the pages of the Will. Therefore, the very signing of the

Will at Tis Hazari in the presence of these persons becomes doubtful. If one

assumes that the Will was signed on 29.10.85 at 5, Sardar Patel Marg, New

Delhi, this is contrary to the very basis of the case of the petitioners

who have set up the Will with the affirmation that it was signed on 30.10.85

at Tis Hazari.

52. In addition to this, even if the petitioners are given the benefit of

doubt of some mistake with regard to the date and even if it is on 29.10.85,

PW-1 was not present at 5, Sardar Patel Marg, New Delhi, therefore, this

becomes a matter which is highly doubtful and the Will cannot be deemed to

have been proved, notwithstanding the fact that both the attesting witnesses

are testifying contrary to each other.

53. Mr. Dayal, the learned counsel has also placed reliance on case titled

Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors. 2008 (4) SCC 300

and case titled Damodar Bordoloi Vs. Mrinalini Devi Trust Board & Ors.

AIR 1999 Guwahati 53 with regard to the principles regarding proof of the

execution of the Will to contend that in the said case the attesting witnesses

did not state that they have signed the Will in the presence of a testator then

a presumption in such a case of the absence of due attestation was not

warranted. It was also observed that the proof of the testamentary capacity of

the deceased/testator is to be established from the evidence of a competent

and disinterested witness while as, RW-8 was stated to be an interested

witness. It is stated that he has denied even the receipt of his fee of

Rs.1000/- which has been proved by PW-3 with the help of a bill.

54. I do not think that denial of receipt of fee of Rs.1000/- by RW-8 in

any way dents his testimony. Apart from this, even if Ex.RW-8/PA, the bill

is stated to have been proved, it is at best a bill which is floated by him for

the purpose of raising the bill and is not a document showing the payment to

the RW-8, R.K. Singh.

55. I have gone through the aforesaid judgments. In Damodar Bordoloi’s

case (supra), relied upon by the learned counsel, it was held as under:-

“it cannot be laid down as a matter of law that because the witness did not

state in Court that they signed the Will in the presence of the testator, it

could not be assumed that there was no due attestation. It was further held

that if a witness owing to inadvertence fails to say that he had attested the

document in the presence of the testator and narrates the consequence which

leads to no other inference but one that he had put his signature in the

presence of the testator, then this omission on the part of the witness would

not invalidate the Will and it shall not preclude the Court to infer this fact

from other evidence on record that the witnesses had signed the document in

the presence of the testator.”

56. It was further observed as under:-

“the law does not emphasis that the witness must use the language of Section

63 to prove the requisite matters thereof. In a case where attesting

witnesses are produced and they have given clear and cogent testimony

regarding execution, one should require very the strong ground to repel the

effect of such testimony.”

57. I do not think that there could be any disagreement with the judgment

which has been cited by the learned counsel. The only dispute is as to

whether the observations made by the learned Single Judge of Guwahati

High Court would be applicable to the facts of the present case.

58. To my mind, the facts of the present case as it emerges from the

testimony of the attesting witnesses does not show that it is a case where on

account of inadvertence, the attesting witnesses does testify that they have

seen the Will being signed in the presence of the deceased/testator. On the

contrary, RW-8 has categorically stated in his examination-in-chief and

cross examination that he signed the Will on 29.10.85 at 5, Sardar Patel

Marg, New Delhi at the instance of his senior counsel PW-3, Daniel Latifi in

the presence of one Prasad only, namely, Parmeshar Prasad, PW-2. He has

also stated categorically that while signing the Will, he had not seen the

deceased/testator. Obviously, in such contingency, it cannot be said that the

principles which have been evolved by the High Court of Guwahati in the

facts of the said case can be made applicable to the fact of the present case,

where there is a categorical evidence to the contrary. This is further fortified

by the fact that PW-1 gives altogether a different picture with regard to the

date, time and the place of signing. Therefore, this judgment is

distinguishable from the facts of the case and its ratio is not applicable.

59. In the light of the aforesaid analysis of the evidence, I feel that the

judgments of Mathew’s, Bandaru‘s cases (supra) and Sridevi Vs. Jayaraja

Shetty & Ors. 2005 (2) SCC 784 are distinguishable from the facts of the

present case.

60. In K.K. Birla’s case (supra), the Supreme Court has observed that the

probate Court would not decide any dispute with regard to the title and

therefore, a separate suit would lie. I do not think there can be any issue on

that score nor is such a preposition of law involved in the instant case.

Similarly, in Sridevi’s case (supra), it has been held that the onus of proof to

begin with, is on the propounder regarding the testamentary capacity and

signatures of the testator. In addition to this, the onus with regard to the

absence of any suspicious circumstances is also on the petitioners. Once this

onus is discharged, the burden of proof shifts to the respondents and onus to

establish the allegations of undue influence, fraud and coercion is on the

person making such allegations. It has also been observed that proof in

either case should be one of the satisfaction of a prudent man.

61. Regarding this proposition of law also, there could be no quarrel. The

onus is on the petitioners in the instant case to establish the proof of

execution of the Will of the deceased/testator when he was in a sound state

of mind. The petitioners also have the onus to show that there was no

suspicious circumstance and it is only when this onus is discharged, that the

onus to prove, the existence of suspicious circumstance regarding Will, will

shift on to the respondents.

62. In the instant case, I have already examined the question of proof of

execution of the Will which I feel that the petitioners have failed miserably

to establish by any cogent, reliable, credible evidence to the satisfaction of a

prudent man or the Court that the Will dated 30.10.85 was made by the

deceased/testator bequeathing his movable or immovable properties to a

Trust and that the Will was signed on 30.10.85 by him simultaneously in the

presence of two attesting witnesses and thereafter, got registered.

Non-compliance of Section 276(3) with Section 283 (3) of the Indian

Succession Act, 1925

63. Mr. Ganju, the learned senior counsel appearing for the State of

Rajasthan has contended that no probate can be granted to the petitioners

inasmuch as the mandatory requirement of Section 276 (3) and Section 283

sub-Section (3) of the Indian Succession Act, 1925 regarding publication of

the citation in a District in which a part of the property is situated, has not

been mandatorily complied with. It was contended that the petitioners have

also not made list of assets in each District as contemplated in Section 276

(3) of the Indian Succession Act. It will be worthwhile to reproduce the

language of the aforesaid sections, which reads as under :-

“276 Petition for probate. –

………..

(3) Where the application is to the District Judge and any portion of the

assets likely to come to the petitioner’s hands is situate in another State, the

petition shall further state the amount of such assets in each State and the

District Judges within whose jurisdiction such assets are situate.”

“283 Powers of District Judge. –

…….

(3) Where any portion of the assets has been stated by the petitioner to be

situate within the jurisdiction of a District Judge in another State, the District

Judge issuing the same shall cause a copy of the citation to be sent to such

other District Judge, who shall publish the same in the same manner as if it

were a citation issued by himself, and shall certify such publication to the

District Judge who issued the citation.”

64. Mr. Ganju, the learned senior counsel, on the strength of the aforesaid

statutory provisions has placed reliance on case titled Basanti Devi vs. Ravi

Prakash Ram Prasad Jaiswal; (2008) 1 SCC 267 to contend that since the

Apex Court in the said judgment has held the requirements of Section 283

sub-Section (3) to be mandatory in nature, and as the said requirement has

not been complied with in the instant case, therefore, no probate can be

granted.

65. It was contended by Mr. Dayal, the learned counsel for the petitioners

that citation was published in National Edition of ‘Statesman’ which has a

wide circulation in Rajasthan. Notices were issued to the District Judge,

Jaipur on 2.11.87 and 7.11.87. The State of Rajasthan filed an application

being I.A. No.915/2010 for citation to be published in ‘Statesman’ after a

lapse of 23 years. Further, the facts of the Basanti Devi’s case (supra) were

different. In the said case, the respondent, in the first instance, did not

disclose that the deceased/testator had property at a place other than the

State of Maharastra. Even when the application for amendment was filed, it

was not disclosed that there is another property situated in District

Pratapgarh, State of UP. It was in this background that the Apex Court

observed that a person having no knowledge about the proceedings in the

absence of a proper citation was entitled to get the probate revoked.

66. As against this, in the present case, the details of the properties as

available in different District was given. The news relating to probate

application was very well covered by the local dailies of Rajasthan.

Objections were filed by number of persons, some of whom were from

Jhunjhunu District. Therefore, it could not be said that conditions of Section

283(3) were not complied with. It was further urged that the State of

Rajasthan having invoked the provisions of the Rajasthan Escheat

Regulation Act, 1956, themselves had issued notification under Section 6 (i)

(b) of the said Act. Therefore, this was sufficient compliance.

67. I have carefully considered the submissions made by the respective

sides. I have also gone through the judgment cited by the learned senior

counsel for the State of Rajasthan. I agree with the contention of the learned

counsel for the petitioners that merely because there is alleged non-

compliance of Section 283 (3) of the Indian Succession Act, 1925 on

account of non-publication of the citation in the District of Jhunjhunu

through the District Judge, that will not be a ground for denial of grant of

probate to the petitioners, provided the Will is otherwise proved. This is on

account of the fact that the very purpose of compliance of this mandatory

requirement is to make the party know about the pendency of the probate

petition. In the instant case, the State of Rajasthan is vehemently contesting

the probate petition before this court as well as also contesting the writ

petition filed by the petitioners before the Rajasthan High Court. Therefore,

it was within the knowledge of the State of Rajasthan that the probate

petition is pending before the appropriate judicial forum for adjudication. It

does not lie in the mouth of the State of Rajasthan to contend that though

they are aware of the pendency of the probate petition and are contesting the

same yet, the petitioners should be denied the grant of probate on account of

the non-compliance of the mandatory provisions under Section 283 (3) of

the Indian Succession Act, 1925. It is not a case where an objector to the

grant of probate petition has come to the court saying that he was not aware

of the proceedings pending before the Court. On the contrary, despite the

non publication of the citation by the District Judge, Jhunjhunu, the

objectors did file number of objections. Therefore, in my view, this was

sufficient compliance of Section 283 (3) of the Act. It is also not a case

where the grant of probate is sought to be revoked on account of non-

compliance of this mandatory requirement in Basanti Devi’s case (supra),

therefore, I hold that this contention of the State of Rajasthan is without any

substance and is accordingly, rejected as a ground for non-grant of probate.

Duplicate Will and Will void on account of uncertainty

68. Mr. Ganju, the learned senior counsel had next contended that merely

because Will Exhibit P-1 has been registered by the deceased/testator with

the Registrar’s office, that does not dispense with the requirement of proof

of the due execution and attestation of the Will for grant of letter of

administration or probate. It was contended that the Will which has been

exhibited as Exhibit P-1, bears the duplicate stamp. It was contended that if

it was duplicate, then before taking this as a secondary evidence, the

petitioners had to establish that the original Will was not available or the

conditions which would have made the secondary evidence admissible in

terms of Section 66 of the Evidence Act, 1872 were existing.

69. Further, the learned senior counsel has referred to paragraphs 12 and

13 of the judgment of the Apex Court in Apoline D’Souza vs. John

D’Souza; (2007) 7 SCC 225 as to how the Will is to be proved. Relevant

paragraph Nos.12 and 13 of the said judgment are reproduced as under:-

“12. What should be the mode of execution of a will has been laid down in

Section 63 of the Succession Act in the following terms :

“63. Execution of unprivileged wills. - Every testator, not being a soldier

employed in an expedition or engaged in actual warfare, or an airman so

employed or engaged, or a mariner at sea, shall execute his will according to

the following rules:

(a) The testator shall sign or shall affix his marks to the will, or it shall be

signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person

signing for him, shall be so placed that it shall appear that it was intended

thereby to give effect to the writing to a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has

seen the testator sign or affix his mark to the Will or has seen some other

person sign the Will, in the presence by the direction of the testator, or has

received from the testator a personal acknowledgement of his signature or

mark, or of the signature of such other person; and each of the witnesses

shall sign the Will in the presence of the testator, but it shall not be

necessary that more than one witness be present at the same time, and no

particular form of attestation shall be necessary

13. Section 68 of the Evidence Act, 1872 provides for the mode and

manner in which execution of the Will is to be proved. Proof of attestation

of the Will is a mandatory requirement. Attestation is sought to be proved

by PW-2 only. Both the daughters of the testatrix were nuns. No property,

therefore, could be bequeathed in their favour. In fact one of them had

expired long back. Relation of the testatrix with the respondent admittedly

was very cordial. The appellant before us has not been able to prove that she

had been staying with the testatrix since 1986 and only on that account she

was made a beneficiary thereof. The Will was full of suspicious

circumstances. PW-2 categorically stated that the Will was drafted before

her coming to the residence of the testratrix and she had only proved her

signature as a witness to the execution of the Will but the document was a

handwritten one. The original Will is typed in Kannada, although the blanks

were filled up with English letters. There is no evidence to show that the

contents of the Will were read over and explained to the testatrix. PW-2 was

not known to her. Why was she called and who called her to attest the Will

is shrouded in mystery. Her evidence is not at all satisfactory in regard to

the proper frame of mind of the testatrix. There were several cuttings and

over writings also in the Will.”

70. It was also contended that the initial onus with regard to the proof of

the Will has to be discharged by the petitioners and in the instant case, the

petitioners have failed to discharge the said onus. Reliance in this regard

was drawn to the testimony of RW-8, R.K. Singh, to contend that he has not

proved the signatures of the deceased/testator.

71. It was contended that the Will which has been sought to be proved by

the petitioners lacks in description of extent properties alleged to be

bequeathed by the defendants. It is contended that Section 89 of the Act

makes such Will void for uncertainty. It is also contended that strangers

have been included as attesting witnesses, which is quite intriguing. It is

contended that there is utter improbability of the testator being highly

educated would get his Will attested by the two persons who were not

closely associated with him. In this regard, the learned counsel has put

reliance on the observations passed by the Apex Court in Smt. Jaswant Kaur

vs. Smt. Amrit Kaur & Ors; (1977) 1 SCC 369 which reads as under :-

“………………Neither is the place of execution mentioned. The Will also

lacks in description of the extensive properties allegedly bequeathed to the

defendant. The inclusion of strangers as attesting witnesses is intriguing.

The utter improbability of the testator accosting two strangers for getting his

Will attested and the fundamental contradictions in their evidence render it

impossible to hold that they attested the Will at the instance of the testator as

alleged. A man of importance that the testator was, he could not ever have

left the validity of his Will to depend on the unpredictable attitude of

unknown elements……………….”

72. It has been contended by the learned counsel that since the

deceased/testator was a law knowing person, well-placed in life, being a

Member of Constituent Assembly, Member of Rajya Sabha and even an

Ambassador to Laos on behalf of Government of India, it is very unlikely

that he would have placed reliance on two unknown persons like PW-1, P.N.

Khanna, and RW-8, R.K. Singh, junior to his friend PW-3 Daniel Latifi, as

the persons who would be attesting witnesses to his Will. It is further

contended that he would have made persons, who were intimately associated

with him like Mr.Parmeshwar Prasad and Gokul Anand or other known

person as attesting witness rather than selecting two unknown strangers.

73. Further, it has also been contended by him that if one reads the Will, it

refers to bequeathing of his all movable and immovable properties, as

detailed in income-tax and wealth-tax returns to the Khetri Trust, which was

likely to be created. It has also been stated in the Will that these detailed

properties are mentioned ‘herein below’ but neither the details of the

properties are given in the Will itself nor the copies of the wealth-tax return

or income-tax return, indicating the number of properties owned by him

which are purported to have been bequeathed, have been attached, therefore,

it has been contended in terms of Jaswant Kaur’s case (supra), that the Will

is fraught with high improbabilities and it will not be safe to rely upon.

74. This plea has been contested by the learned counsel for the petitioners.

It has been contended by him that there was no doubt in the mind of the

deceased/testator as to the witnesses or the nature of properties owned by

him. There was no confusion about the intent of the deceased/testator as he

wanted to bequeath all his movable and immovable properties to a Trust for

the benefit of the public at large for the purpose of education, welfare,

medicines, etc., therefore, he was very clear while bequeathing the property

that all movable and immovable properties have to go to the said Trust for

the benefit of the public at large. It is contended that the objection or the

contention of the learned counsel for the State of Rajasthan is without any

merit.

75. I have considered the rival contentions. I find substance in the

submission made by Mr. Ganju, the learned senior counsel for the State of

Rajasthan that the Will lacks particulars and is fraught with improbabilities.

In this regard, it would be pertinent here to refer to Section 89 of the Indian

Succession Act, along with illustration which reads as under:-

“89. Will or bequest void for uncertainty.—A will or bequest not expressive

of any definite intention is void for uncertainty.”

Illustration

If a testator says “I bequeath goods to A”, or “I bequeath to A”, or “I

leave to A all the goods mentioned in the Schedule” and no Schedule is

found, or “I bequeath ‘money’, ‘wheat’, ‘oil’” or the like, without saying

how much, this is void”.

76. A perusal of the contents of the Will, which have been reproduced

herein at paragraph 2, clearly shows that it makes a reference to bequeathing

of the movable and immovable properties by the deceased/testator and as

reflected in the wealth-tax and income-tax return to the Trust but neither

these details have been furnished by way of attaching the wealth-tax or

income-tax return nor are the details of the properties mentioned in the Will

itself. The words used in the Will are ‘all those my properties, moveable or

immovable, anywhere, upon trust as below appears’, meaning thereby that

the deceased/testator wanted to give the details of the property mentioned

there under. Separately also, the petitioners could have proved the income-

tax and the wealth-tax return of the deceased/testator so as to give certainty

to the list of moveable and immoveable properties owned by the

deceased/testator, which were sought to be bequeathed. This has not been

done.

77. Therefore, the Will, in my view, becomes void in terms of Section 89

for want of particulars of the movable and immovable properties. This

becomes a suspicious circumstance in the Will, which the petitioners’, in my

view, have failed to discharge to the satisfaction of the court. Merely

because the Will has been registered with the sub-Registrar or merely

because the properties have been bequeathed for the benefit of the public at

large for the purpose of running a Trust, which will spend this amount for

the benefit of the public for the purpose of education, health care, etc., does

not mean that the Will notwithstanding its defect, can be said to be a Will

which is duly proved. I, therefore, agree with the State of Rajasthan that

even if the Will is taken on the face value, it is inchoate and does not satisfy

the requirement of the law as being complete document itself evincing the

intention of the deceased/testator. Similarly, the Will which is exhibited as

Exhibit P-1 bears the words ‘Duplicate duly stamped’. There is one original

typed copy also which Mr. Dayal says is the actual Will which bears a mark

in red pencil which is stated to be exhibit mark P-1. But this is not fully

legible. It also does not bear the signature of the Judge. Normally, when the

document is exhibited by the Court, apart from exhibit number, the Judge

puts his signature.

78. The deceased/testator was a highly educated person and was also a bar

at law. He must have understood the implications of signing a document

bearing the word ‘Duplicate’ meaning thereby, there is a principal or main

document of which the Exhibit P-1 is duplicate. The original Will is not

only supposed to be filed with the probate petition but it is only the original

Will which is to be proved because that is the primary evidence which has to

be produced before the court. Secondary evidence can, of course, be

produced but then those conditions in which secondary evidence is

admissible in terms of Section 66 of the Evidence Act have first to be proved

by a party and then secondary evidence made admissible.

79. In this regard, the argument of Mr. Ganju, the learned senior counsel

seems to have considerable force that document Ex.P-1 being the duplicate,

cannot be taken to be as the original Will and that too proved in accordance

with law. I do not consider it necessary to refer to the judgments cited by

the learned senior counsel in this regard, as it is squarely dependent on the

facts of the case and Sections 65 and 66 of the Evidence Act which has been

dealt with hereinabove.

Non-production of Gokul Anand as witness.

80. Will is a personal document which is made by the deceased/testator

visualizing as to how the property must devolve after he disappears from the

scene. Therefore, normally a person keeps such a devolution secret and

associates only from his closest person, in whom he has implicit faith about

their integrity that they would give effect to his wishes after his

disappearance. As has emerged from the testimony of PW-1, P.N. Khanna,

RW-5, Jaswant Singh, RW-6, Gopal Singh, RW-8, R.K. Singh and from the

testimony of PW-2, Parmeshwar Prasad that Parmeshwar Prasad was very

close to the deceased/testator. Similarly, it has also come in the testimony of

PW-1, P.N. Khanna, that Gokul Anand was the Personal Assistant or the

Secretary, if one may say so, who was the other fellow close to the

deceased/testator. He was also present with the deceased/testator at Tis

Hazari Courts on 30.10.1985. Normally, in terms of Jaswant Kaur’s case

(supra), the deceased/testator would, in ordinary course, have associated

persons with signing of the Will who are closest to him. Moreover, since the

Will was being devised for the benefit of the general public, there was no

reason to keep it a secret from these two persons. Their not being aware

seems to be something curious bordering a suspicious circumstance.

81. In any case, I was considering the fact that in the light of contradicting

versions being given by PW-1, P.N. Khanna, and RW-8, R.K. Singh. Gokul

Anand, who was stated to be present on 30.10.1985 on Tis Hazari Courts,

would have been helpful to solve the mystery of two separate versions. He

could have thrown some light on the matter. There is no dispute that Gokul

Anand was the Personal Assistant of the deceased/testator and in normal

circumstances, the deceased/testator would have associated the person who

is closest to him. Even if the benefit of doubt is given to the

deceased/testator that it was his own wisdom to associate A or B, still Gokul

Anand could have cleared some doubts had he appeared as a witness. Gokul

Anand was sought to be summoned by the objectors as a witness, which was

allowed by the learned trial court. Normally, the petitioners ought not to

have objected to his production as a witness, however, the record shows, the

petitioners had preferred an appeal against the order of the learned Single

Judge permitting the production of Gokul Anand as a witness which appeal

was allowed by the Division Bench of this court. Therefore, though the

petitioners are protected by the judicial order passed by the Division Bench

regarding the non-production of the one of the closest persons and a

Personal Assistant to the deceased/testator, yet, the fact remains that the said

judicial order was invited by the petitioners themselves. It was on their

appeal that the court had passed such an order only on account of the fact

that his production would have caused further delay. I feel that this conduct

on the part of the petitioners of preferring an appeal against the production

of Gokul Anand also makes me draw an inference against them that they

never wanted the doubts which may linger in the mind of the Court from the

contradictory testimonies of the witnesses, to be got cleared. This is an

important circumstance which makes me draw an inference that this is a

very vital suspicious circumstance which does not get removed on account

of the non-discharge of burden by the petitioners.

Other evidence produced by the respondents

82. RW-1, Badri Narain Nayak, states that he had formed a Society by the

name and style of All India Anti-Corruption and Crime Preventive Council

and was its General Secretary. He states that he hails from Jaipur, State of

Rajasthan and he had met Raja Sahib Sardar Singh of Khetri in the year

1982-1983. He further states that in connection of a complaint lodged by

one K.C. Sharma of Jaipur, who was a member of their Parishad, he had

gone and met the deceased/testator at his house at Sardar Patel Road, New

Delhi. Their he met one Parmeshwar Prasad/PW-2. He identified

Parmeshwar Prasad. In his cross-examination, he stated that the complaint

was received by him in writing but he had not brought the same. He also

stated that no action was taken on the basis of the complaint.

83. RW-2, Kailash Narain Rawat, is a Tehsildar from Jaipur, who stated

that certain properties belonging to the deceased/testator were attached in

pursuance to invocation of provisions of Rajasthan Escheat Regulation Act,

1956. RW-3, Dwarka Prasad, is a person who testified that he is living in

Bazar Sita Ram for the last two decades and they have been in occupation of

a portion of Khetri House in Jaipur, which is given as a permanent address.

He has also stated that Parmeshwar Prashad used to be the General Attorney

of the deceased/testator and he used to look after the affairs of the

deceased/testator. He has stated that the deceased/testator died on

30.10.1985 and he remained sick for 3-4 years. In his cross-examination, he

has admitted that he has never met the deceased/testator nor he has ever

visited his house.

84. RW-4, Rajinder Singh, is one of the objectors, who denied the

signatures of the deceased/testator on Exhibit P-1, that is, the Will and

Exhibit P-3, the Codicil. He has claimed himself to be related to the

deceased/testator as his grandfather, Shiv Singh Ji, was the real brother of

the deceased/testator’s grandfather, Jaswant Singh. In his cross-

examination, he has stated that he used to receive the letters written by the

deceased/testator but he had not brought the same. At the time of his

deposition, he has given his age as 33 years and that of the deceased/testator

as 70 years at the time of death. He also stated that he had seen the

deceased/testator writing and signing on 2-3 occasions and on that

occasions, he had seen Manager bringing papers to the deceased/testator and

he had put his signatures. He also denied the suggestion that the Will

Exhibit P-1 and the Codicil Exhibit P-3 bears the signatures of the

deceased/testator.

85. RW-5, Jaswant Singh and RW-6, Gopal Singh, respectively are the

former employees of the deceased/testator. RW-5 worked with the

deceased/testator for 10-12 years and was living in the servant quarter at

Khetri House, Sardar Patel Road. He is claiming that he retired in 1978 and

in his place, his brother Radhey Shyam was employed by the

deceased/testator. He has also testified that PW-2, Parmeshwar Prasad, was

all in all so far as the deceased/testator is concerned and it was he, who used

to take the signatures of the deceased/testator on various documents. He has

also stated that the deceased/testator was not having good health since 1980

and he was not mentally sound. In his cross-examination, he stated that as

the wife of the deceased/testator had left him in the year 1962, he suffered

mental shock. He also admitted that his services have been terminated in the

year 1978. RW-6 has also testified to the effect that PW-2, Parmeshwar

Prasad, used to look after the affairs of the deceased/testator and it was he

who used to get his signatures on documents on which he wanted. The

deceased/testator also used to consult PW-2, Parmeshwar Prasad, only with

regard to every work. He also stated that he used to live in the Khetri

House, Sardar Patel Road. He also stated that the deceased/testator was not

enjoying good health after his wife had left him.

86. RW-7, Kusum Lata, LDC in the office of the Registrar, has produced

the record from the Registrar’s office where entries are made with regard to

the deposit of the Will of the deceased/testator. The entry in this regard was

made at serial No.335 of the register and the names of the witnesses to the

Will have been mentioned as P.N. Khanna and R.K. Singh.

87. An analysis of these witnesses which have been produced on behalf of

the respondents barring RW-2, Kailash Narain Rawat, Tehsildar, who

proved the attachment of properties of the deceased/testator and RW-7,

Kusum Lata, who proved the entry of the Will of the deceased/testator in the

record of the Registrar, the remaining witnesses are propped up witnesses by

the objectors. As a matter of fact, one of the witness is the objector himself.

He has withdrawn his objection, therefore, his testimony is of no

consequence. This leaves us with the testimony of RW-1, Badri Narain

Nayak, who seems to be a propped up witness because he had absolutely no

business to meet the deceased/testator and he seems to be running some fake

or name sake organization of anti-corruption and has created a situation so

that he could only testify with regard to meeting the PW-2, Parmeshwar

Prasad. The testimony of RW-5, Jaswant Singh and RW-6, Gopal Singh, the

two of the disgruntled employees, as alleged by the petitioners, are also not

of much relevance except that one thing is clear that they say that

Parmeshwar Prasad/PW-2 was very close to the deceased/testator. So far as

their testimony with regard to the mental state of the deceased/testator is

concerned, that is totally unbelievable. As a matter of fact, one of the

witnesses have said that the deceased died on 30.10.1985 while as that is the

date on which the Will is purported to have been made. The death of the

deceased/testator has been proved by a certificate Exhibit P-4 in 1987 which

is not disputed by the State of Rajasthan. Therefore, the entire analysis of

this evidence is only relevant for the purpose of drawing only one inference

that Parmeshwar Prasad/PW-2 was a close person to the deceased/testator

and he has also not denied this fact. This will be further fortified by the fact

that Parmeshwar Prasad was one of the executors of the Will.

88. The relevance of the testimony of these witnesses and the factum of

Parmeshwar Prashad, PW-2, being very close to the deceased/testator

acquire significance from the point of view of the submissions made by Mr.

Ganju, the learned senior counsel, that it was Parmeshwar Prasad, who was

the moving force for the purpose of setting up this Will as it benefitted him.

Allegation of PW-2, Parmeshwar Prasad, moving force for the Will

89. According to the learned counsel Mr. Dayal, the Will bequeathed the

entire Estate to charity and the State of Rajasthan is only trying to fish a

motive of suspicious circumstance in its execution and has heavily banked

upon PW-2, Parmeshwar Prasad for the purpose of fabricating the Will on

the basis of so-called improbable circumstance. The State of Rajasthan has

suggested that PW-2 may have got blank sheets signed to make a Will and

then have them attested by PW-1, RW-8 and thereafter deposited with Tis

Hazari Court in the presence of the Registrar after getting their signatures.

90. It has been stated by the learned senior counsel Mr.Ganju that PW-2,

Parmeshwar Prasad, was to be paid a sum of Rs.3,000/-, according to the

Will, which amount could be increased with a further permission of the High

Court while as his services were being utilized by the deceased/testator by

paying him a salary of around Rs.2,700/- or so. It was sought to be urged

that it was essentially the PW-2, Parmeshwar Prasad, who was the moving

force to set up a Will in such a manner so that he continue to get a

substantial amount of Rs.3,000/- on perennial basis.

91. The amount of Rs.3,000/- may seem to be very meagre as on date but

certainly keeping in view the time when this amount was fixed and

especially the fact that the incumbent had a salary of Rs.2,700/-, which was

admittedly less than Rs.3,000/-, this could be said to be certainly a

substantial amount for the executor, Parmeshwar Prasad, PW-2.

92. This argument of the motive or the personal gain of PW-2,

Parmeshwar Prasad, was sought to be refuted by Mr. Dayal, the learned

counsel on behalf of the petitioners by urging that no amount whatsoever

was drawn by Parmeshwar Prasad till 29.1.2003. For this purpose, the

learned counsel submitted that it is clear from the minutes of the Trust

meeting dated 29.1.2003 that PW-2, Parmeshwar Prasad, was not paid even

a single penny of Rs.3,000//- till just before the date of death in the year

2003. This was contested by the learned counsel for the State of Rajasthan.

93. I have considered this submission of the learned counsel for the

parties. Although, there is an accusation qua PW-2, Parmeshwar Prasad, so

far as fabrication or forging the Will of the deceased/testator is concerned

but I do not feel that there is any credible evidence which can make the court

to draw such an inference that the Will has been fabricated or forged on

blank papers. Admittedly, PW-2, Parmeshwar Prasad, was a close person to

the deceased/testator as has been brought in the testimony of RW-5, RW-6,

RW-8 as well as PW-2 himself but the fact of the matter remains that the

deceased/testator was an educated even the vigilant person, who would not,

in my opinion, have signed blank papers. It is well possible that PW-2,

Parmeshwar Prasad, may had some influence in getting the Will made in

such a manner he too was benefitted but to say that it was forged and

fabricated falls short of any credible evidence. Further, so many people like

PW-1, PW-3, RW-8 would not have associated themselves with the Will

when they had apparently nothing to gain. It is well possible that he may

have been induced by PW-2, Parmeshwar Prasad, to create a Trust for the

benefit of the public and under the garb of the Trust, he got an amount of

Rs.3,000/- fixed for his own benefit for discharging the duties

of executor

which benefit was given to other person also. To that extent, he may have

been instrumental in getting the Will made but it can’t be said that it is a

case where the Will has been forged by him and then he could manipulate all

these persons, namely, PW-1, P.N. Khanna, RW-8, R.K. Singh and for that

matter, PW-3, Daniel Latifi, a reputed senior advocate. Therefore, I feel it is

too farfetched to allege that the Will was fabricated or forged by PW-2,

Parmeshwar Prasad, but certainly the fact of the matter remains that PW-2,

Parmeshwar Prasad, must have manipulated things in such a manner so that

the formalities of the Will are sought to be completed at different times

without actually making all the three persons, namely, the deceased/testator

and the two attesting witnesses to sign simultaneously because RW-8, R.K.

Singh, has specifically stated that when he went to Sardar Patel Road, he did

not see the deceased/testator and it was PW-2, Parmeshwar Prasad, who

made him sign the document in question. To that extent, one can certainly

say that this is a suspicious circumstance which goes against the petitioners

94. One of the submissions which was made by Mr. Dayal, the learned

counsel for the petitioners was that testimony of PW-3 has been incorrectly

recorded wherein he has stated that he has also signed the Will. It was the

contention of Mr. Dayal that while referring to the Will, what learned senior

counsel wanted to say was that he had signed the ‘bill’ and inadvertently, it

has got recorded the Will. It has also been contended by him the fact that

cross-examination did not pursue this even a single subsequent question has

not been put to the witness, it cannot be read in evidence to mean that the

Will of the deceased/testator Exhibit P-1 was signed by PW-3, Daniel Latifi.

95. I do not agree with this contention of Mr. Dayal that the word “Will”

has been recorded in the testimony of the learned senior advocate

inadvertently in place of the word “Bill”. First of all, if the testimony of

PW-3, Daniel Latifi, is read in its entirety then the word “Bill” in the light of

cross-examination, would make no sense. It has to be read as “Will”.

Subsequently, PW-3, Daniel Latifi, being a senior advocate has put his

signatures on his statement after reading and the statement is not very

exhaustive that it would have skipped his notice as he was an enlightened

advocate, therefore, he would have corrected the same on the first sight

itself. This non-correction of his statement by him clearly shows that the

word used in his statement is “Will” and it is very surprising to say that he

too had put his signatures on the Will while the Will Exhibit P-1 does not

bear his signatures. This is also a circumstance which goes against the

petitioners.

Sound disposing of mind of the deceased/testator

96. So far as the capacity of the deceased/testator to make the Will is

concerned, no doubt, one of the requirements of law is that the

deceased/testator must be proved to be of a sound disposition. There is no

dispute about the fact that the deceased/testator was of sound mind although,

the objectors had produced the witnesses, namely, RW-5 and RW-6, the ex-

employees of the deceased/testator to contend that the deceased/testator was

not of a sound mind, however, I feel that both these witnesses, being

disgruntled ex-employees of the deceased/testator, were not truthful and

their testimony has to be discarded. It has also not been the submission of

the learned senior counsel for the State of Rajasthan that the

deceased/testator was not of sound mind. I feel that there is absolutely no

reason to doubt that the deceased/testator being highly qualified, having hold

such high positions as Member of Rajya Sabha, Member of Constituent

Assembly and the Ambassador of Laos and nothing having brought on

record to show or draw an inference that he was not of sound mind, makes

the court believe that he was perfectly in a sound state of mind.

Suspicious circumstance of death of testator

97. One of the arguments which was put by Mr. Ganju, the learned senior

counsel was that his death had occurred in Bombay under suspicious

circumstances and, therefore, it was sought to be urged that the Will may not

be relied upon. I do not attach any importance to this submission made by

the learned senior counsel. The deceased/testator may have died under

suspicious circumstances but the fact of the matter remains that no FIR was

registered and certificate of death has been issued by a competent authority,

it has been proved by the petitioners that the deceased/testator had died in

normal course after almost two years from the date of having made the Will,

therefore, there is nothing on record or no reason for this court to suspect

that the death of the deceased/testator was suspicious.

Khetri Trust and its credentials

98. Mr. Ganju, the learned senior counsel for the petitioners and learned

counsel for the State of Rajasthan has also raised the questions with regard

to the credentials and credibility of the Khetri Trust. He has contended that

the Trust is a sham and further contended that the formation of the Trust and

the appointment of its executors is only a ploy to usurp the properties of the

deceased/testator. In this regard, the learned counsel has made following

points :-

(i) No activity carried out by the Trust for the objectives laid down in the

Will.

(ii) Meeting held on 29.01.2003 in which Dr. Romila Thapar, Tejbir

Singh and Parmeshwar Prasad receive a sum of Rs.5.46 lacs, Rs.3.27 lacs

and Rs.5.7 lacs as stipend. The petitioners in this regard have proved various

minutes of the meeting of the Khetri Trust which are exhibit PW-2/DC to

PW-2/DH.

(iii) The Trust is just a sham which was created by late Parmeshwar Prasad

to take undue benefits from estate of late Raja of Khetri and he benefited

immensely even by selling certain rare movable properties at Sardar Patel

Marg.

(iv) The Khetri Trust has not been registered under the Rajasthan Trust

Act, 1959 and case is pending before Additional Commissioner, Devasthan

and numbered as 123/94 and 14/2008.

(v) The present constitution of the Khetri Trust is not in accordance with

the manner laid down in the Will. The chain of trustees to be appointed in

the form of the incumbent trustees inducting new trustees in the event of

death/resignation has not been shown. It is unclear as to how the present

persons claim to be trustees of Khetri Trust.

(vi) That Lord Northbrook is a foreigner and claims to be an executor of

the Will. However, he is not in position to administer the estate as an

executor. In fact, he has constituted various attorneys at various points of

time. Initially, Mr. Tejbir Singh was constituted attorney, who is also

alleged to be Trustee of the Trust. Later on, Mr. Tejbir Singh, even though

earlier trustee of the Khetri Trust has been removed and Mr. Sajjan Narain

has been appointed as attorney. However, the applications have been filed

on behalf of one Prithvi Raj Singh and Lt. Col. Rajesh Sinha on behalf of

Lord Northbrook. Thus, the Lord Northbrook is not having any interest in

administration of the estate of the Testator as executor and has been

operating at the behest of certain persons. It appears that Tejbir Singh is no

longer the trustee of the Khetri Trust. Thus, the trustees are changeable and

variable.

99. This contention of Mr. Ganju, the learned senior counsel has been

refuted by Mr. Dayal, the learned counsel for the petitioners. It has been

contended on behalf of the petitioners that the Khetri Trust, which has been

formed by the deceased/testator was on account of the fact that he was a

childless widower and to ensure that the properties which are left behind by

him are not pilfered but are used for the benefit of the public at large. It was

because of this reason that the petitioners have devised a Trust and made

PW-2, Parmeshwar Prasad, a confident of the deceased/testator and persons

of high repute like Daniel Latifi, senior advocate, Mr. Bhaskar Mitter –

Chairman, Exide Ltd., Mr. Narottam Sehgal - ICS Former Home Secretary

to Government of India, Dr. Romila Thapar, the Eminent Historian, Mr.

Vikram Lal – Chairman, Eicher Ltd., as the Trustees initially. It has been

contended by him that with the presence of these persons of high credentials,

one could hardly doubt the question of formation of the Trust and its

objectives.

100. Although, this is a point which is debatable that the Trust which was

formed by the deceased/testator for the benefit of the public where certain

doubts have been expressed by the State of Rajasthan on account of various

submissions and the points given hereinabove but I feel that it may not be

necessary to advert to the said points on account of the fact that the

petitioners have, in my opinion, not been able to establish the Will and the

Codicil itself by preponderance of probabilities and in accordance with law.

Therefore, I do not consider it necessary to deal with this submission of Mr.

Ganju.

Conclusion

101. For the reasons mentioned above, I am of the considered opinion that

following broad factors emerge from the analysis of the evidence:-

1) That the petitioners have not been able to prove the Will Exhibit P-1

and the Codicil Exhibit P-3. The Will is not proved on account of the fact

that the testimony of PW-1, P.N. Khanna and RW-8 is dramatically

opposite. RW-8 has no reason to speak untruth, which will benefit him

personally in any manner whatsoever.

2) The testimony of PW-3, Daniel Latifi, the senior advocate and PW-2,

Parmeshwar Prasad, also does not corroborate the testimony of PW-1, P.N.

Khanna, on material particulars with regard to the date and the place of

signing the Will, as required by law, that is, the deceased/testator and two

attesting witnesses signed simultaneously.

3) Non-production of Gokul Anand as a witness, though, the petitioners

are under the protection of the orders of the Division Bench is curious and

suspicious. No doubt, the order of the learned Single Judge was set aside but

the fact of the matter remains that the appeal was filed by the petitioners

against his production. He was one of the most important witnesses, who

could have cleared the doubts about the place of signing the Will. The

reason that his production would have caused delay is not convincing.

4) That the Will which is executed by the deceased/testator is incomplete

and lacks material particulars. It talks about bequeathing immovable and

movable properties to the Trust mentioned ‘herein below’ and no details of

the properties are mentioned in the Will itself nor are the copies of the

income-tax return or the wealth-tax return attached as the Will says that

details of the properties are given therein. The petitioners have

independently failed to prove the said documents.

5) PW-3, Daniel Latifi, was produced in rebuttal, has very categorically

stated that he had put his signatures on the Will while as the Will Exhibit P-1

does not bear his signatures. PW-3 being a senior advocate would not make

an irresponsible statement. Where is this Will which bears the signatures of

PW-3? He further states that he is not sure whether RW-8, R.K. Singh, was

present on 30.10.1985 when the Will is purported to have been signed by the

deceased/testator and deposited with the Registrar. This makes highly

probable that RW-8, R.K. Singh, signed the Will on 29.10.1985 at 5, Sardar

Patel Marg, New Delhi, and not on 30.10.1985. Further, his testimony that

he signed in the presence of PW-2, Parmeshwar Prashad, and not in the

presence of deceased/testator, gets proved by the preponderance of

probability. This means that even if PW-1, P.N. Khanna’s testimony is

accepted as true, excluding what has been proved by RW-8 and corroborated

by PW-3, Daniel Latifi, it does not prove the Will according to Section 63

of the Indian Succession Act read with Section 68 of the Evidence Act.

6) PW-1, P.N. Khanna, does not talk about the presence of PW-3, Daniel

Latifi. The presence of Daniel Latifi, who had stated that he was present not

in the capacity of his professional duties but only as a personal friend to the

deceased/testator would not have gone unnoticed by the PW-1. Therefore,

PW-1 is not telling the truth. I would prefer to rely on the testimony of PW-

3, Daniel Latifi, being a senior advocate because he would not have made

irresponsible and incorrect statement in this regard. RW-8, R.K. Singh,

categorically stated that he signed the Will on 29.10.1985 and not on

30.10.1985 at Tis Hazari. Similarly, he says that the Codicil Exhibit P-3 was

signed by him in the chamber of PW-3, Daniel Latifi while as PW-1 states

that he signed the Codicil Exhibit P-3 at the residence of deceased/testator at

5, Sardar Patel Road, in the presence of RW-8. Further RW-8 states that he

did not ever see or met the deceased/testator, therefore, the deceased/testator

having put signatures in the presence of RW-8, R.K. Singh is completely

ruled out. Because of these reasons, neither the Will Exhibit P-1 nor the

Codicil Exhibit P-3 have been signed by the deceased/testator in the

presence of both attesting witnesses or at least, RW-8. The attesting

witnesses, RW-8 had not seen the deceased signing the Will or the Codicil

nor got any acknowledgement personally from him about his signatures. If

that be so, the requirement of law is not met.

7) There were many objectors who had raised objection to the grant of

probate/the letter of administration but actually each one of them withdrew.

The reasons for withdrawal by them are inexplicable. No credible reason for

the same has been given. This makes the Court to draw the inference that

some forces were behind the scene which made them withdraw their

objections leaving the field open for the petitioners but for the opposition of

State of Rajasthan.

8) The Will Exhibit P-1 is the duplicate photocopy of the document, the

original is not exhibited as it does not bear the mark of exhibit nor the

signature of the Judge. The exhibit P-1 and exhibit P-2 bear signature of

RW-8 in different inks which shows they were not signed at the same time.

PW-1, P.N. Khanna, has admitted that there were duplicate Wills signed by

him. In cross-examination, he admits that there may be more than two Wills

which he may have signed. If that be so, it is not safe to rely on the

testimony of these witnesses and hold that the petitioners have been able to

prove the Will Exhibit P-1 or the Codicil Exhibit P-3 in accordance with law

by preponderance of probabilities.

102. Thus, the petitioners have failed to not only prove the Will but also

dislodge the suspicious circumstances, some of which are mentioned in

conclusion, which makes the court to believe that it is highly unsafe to

assume that the Will has been purported to have been executed by the

deceased/testator or it is proved in accordance with law. Accordingly, issue

no.1 is decided against the petitioners. The petition is dismissed.

103. Since the petition has been dismissed, the question of devolution of

the properties would not arise. Section 29 of the Hindu Succession Act,

1956 lays down as under:

“29. Failure of heirs. If an intestate has left no heir qualified to succeed to

his or her property in accordance with the provisions of this Act, such

property shall devolve on the Government; and the Government shall take

the property subject to all the obligations and liabilities to which an heir

would have been subject.”

104. It has been stated by the deceased/testator in operative portion of his

Will that he is a Hindu, even otherwise, there is no dispute about the fact that

the deceased/testator was a Hindu. Therefore, the devolution has to be in

accordance with law and there cannot be a vacuum. During the course of

these proceedings, the Court was informed that in pursuance to Article 296

of the Constitution of India, the State of Rajasthan has passed the Rajasthan

Escheats Regulation Act, 1956 and the provisions of Section 6 of the said

Act have already been invoked by them and they have taken possession of

some of the properties. It is for the State of Rajasthan to decide in

accordance with law as to what is to be done with the properties of the

deceased/testator.

105. Before closing, I must say a word of appreciation for the counsel for

the parties. Since the case was old, it took considerable time to hear the

submissions as well as to dictate the judgment. In this regard, the

assistance rendered by Mr. Anish Dayal, Advocate for the petitioners as well

as efforts of Mr. T.K. Ganju, the learned senior counsel for the State of

Rajasthan are highly appreciated.

Sd/-

V.K. SHALI, J.

JULY 03, 2012