Sarvjit Singh Sareen v. Mrs. Ritu Menon & Ors

Judgment

3. Whether the Reporters of local papers may be allowed to see the judgment? To be referred to Reporter or not? Whether the judgment should be reported in the Digest? HON’BVLE MR. JUSTICE S.RAVINDRA BHAT, J. Yes Yes Yes

1. The plaintiff in this Suit seeks declaration as to Will dated 06.09.1995, which he disputes, as not legal and binding and that it contravenes Section-114 of the Indian Succession Act; he also claims that in the event of declaration not being granted, the Court should hold that the said Will is void and not binding on him. He further seeks a decree for partition in respect of the estate of Mrs. Lajja Sareen (hereafter called “the testatrix”) regarding the property No.N-84, Panchsheel Park (hereafter referred to as “suit property”), movable/immovable assets fully described in the Suit, for the appointment of a Local Commissioner to suggest the mode of partition and take consequential steps towards drawing a final decree. CS(OS) 273/1996

2. The undisputed facts that may be gathered from the pleadings are that the plaintiff (hereafter referred to as ‘Sarvjeet’), Defendant No.1 (hereafter referred to as ‘Ritu’) and defendant No.2 (hereafter referred to as ‘Beena’) are brother and sisters respectively. They are the surviving children of the testatrix, who owned the suit property. The testatrix expired on

17.12.1995, leaving behind the suit property, cash and fixed deposits in the Central Bank of India and some units of the Unit Trust of India. The suit describes a Will dated 29.04.1986 in terms of which the testatrix provided that the suit properties were to vest in her children whereby Sarvjeet and Ritu were to jointly own the ground floor of the property; the first floor was to be inherited by Beena. The suit alleges that restrictions, on the disposition of the property or the shares of each heir were provided in this Will of 1986. According to such restrictions, no heir could sell or transfer his or her share without first offering it to the other two and that in the event of transfer of such share to one or the other heir, it was to be at half the fair market value.

3. The suit alleges that the testatrix had a history of medical problems which resulted in her physical and mental limitations. It is contended that her health started to deteriorate in 1988-89. She began to lose her balance and had an uneven gait difficulty in coordination and no control of her bodily functions. She suffered from short term memory loss and was diagnosed as having a blockage in the base of the neck. The Suit states that the testatrix underwent a surgery in 1989 at the All India Institute of Medical Sciences (AIIMS) where a shunt was installed to relieve pressure in the brain. It is alleged that the blockage in the shunt was diagnosed and corrected in early 1990 and later her physical and mental capabilities continued to deteriorate. The suit alleges that the testatrix’s movements became restricted in December, 1993 – January, 1994 and she spent more time in bed and started to forget things and could not recognize people. The plaintiff also alleges that the testatrix fainted in April, 1995 resulting in her admission in the Sir Ganga Ram Hospital and blood transfusion to stabilize her condition. It is claimed that at that time doctors diagnosed that she had cancer in the stomach; the testatrix also suffered from depression. The suit states that by August, 1995, her condition seriously deteriorated and she underwent a second transfusion. It is stated that in October, 1995, the testatrix went through a dehydration shock and between October and December, 1995, she CS(OS) 273/1996 went into semi-comma a number of times. Sarvjeet alleges in the suit that testatrix had become extremely weak at the time of her death and was incapable of doing anything and was totally dependant on Ritu and her husband (the third defendant – here after referred to as ‘Menon’). In the light of these allegations, the suit states that the testatrix was not of a sound disposing mind practically since April, 1995 when she had collapsed. It is contended that after death of the testatrix, Sarvjeet- who resides in United States of America (USA) came to Delhi to attend her last rites when he became aware of the Will propounded by Ritu and Menon, dated

6.9.1995. The suit alleges that the Will discloses that it was prepared by one Mr. Dinesh Behl, also nominated as an alternative executor; he provided professional services to Ritu and Menon and the institutions being managed by them. The attesting witnesses of the Will are the employees of Mr. Dinesh Behl, who are unknown to the testatrix and the family. It is alleged that the Will was signed by the Testatrix without her understanding its contents, as she was not of a sound disposing mind.

4. The suit further alleges that in December, 1995, the testatrix was not in a fit condition to read the Will or understand its contents. It is alleged that the attesting witnesses did not sign the documents on 6.9.1995 as stated in it. The Suit alleges that besides the testatrix not being possessed of a sound disposing mind, the circumstances show that it was executed on account of mis-representation and fraud played by Ritu and Menon, who led her to believe that they would be ousted from the property if Sarvjeet was given unrestricted right, along with his siblings. The suit alleges that the conditions imposed in the Will are absolutely illegal. They provide that during the life time of Ritu, Menon or their daughter Ratna Menon, i.e., the fourth

defendant, (hereafter “Ratna”) they would have the right to live on the ground floor; Beena was to enjoy the life interest in respect of the first floor. The plaintiff submits that the first part of the Will, however, unambiguously bequeaths the suit property to the three heirs and the subsequent conditions have the effect of postponing the vesting by the heirs, contrary to Section-114 of the Indian Succession Act (hereafter referred to as Act).

5. The averments describe the conditions in the Will with some detail; it alleges that Sarvjeet was 55 years, Ritu, 48 years, Menon, 55 years and Ratna, 21 years at the time of filing of the Suit; Beena was 53 years at that stage. Sarvjeet contends that there is every possibility CS(OS) 273/1996 that he would predecease Ratna Menon who is merely 21 years thereby postponing the vesting of property beyond his life time which renders the Will, void. The suit has described various movable assets in the form of fixed deposits, money multiplier receipts as well as details of the units issued by the Unit Trust of India. It is alleged that the testatrix had a saving bank account in which she left Rs.32,000/- The suit alleges that Sarvjeet is entitled to 1/3rd share and consequential partition of the suit property.

6. Ritu and Menon have filed a common written statement resisting the suit and submitting that with the execution of the Will, dated 6.9.1995, the previous Will dated

29.4.1986 stood superseded. They allege that the plaintiff has little or no personal knowledge of the state of health of the testatrix as he has been living in the USA, since 1964. It is further denied that the testatrix was labouring under mental or physical limitations or had lost control over her bodily functions and that she fell down from the stairs on several occasions or that she was suffering from short term memory loss. The defendants concede that testatrix underwent surgery in AIIMS and denied that her condition was diagnosed as blockage. They contend that the surgery was irrelevant for the present proceedings. They also deny that there was any relapse suffered by the testatrix in 1989 or that her physical or mental capabilities deteriorated. The first and second defendants allege that the testatrix’s ailment was purely physiological and that she received appropriate treatment. They deny that she spent more time in bed and forgot things. It is contended that testatrix during her entire life time led a perfectly normal life, performing all day to day functions, on her own; she handled her investments and properties. They also say that the testatrix continued to entertain her friends, guests and relatives and took interest in the education of her granddaughter. She was also socialized and went to clubs etc. These defendants deny that testatrix fainted and collapsed in 1995. They, however, concede that she was diagnosed with cancer, but at the same time they deny that she was ever depressed. It is asserted that she was full of life till her death, on 17.12.1995. They also deny that her condition deteriorated in August, 1995. They specifically say that testatrix’s mental abilities were intact and she kept close watch on investments and fixed deposits etc. even till just before her death; and that she used to keep a close watch on the kitchen. The defendants deny that the testatrix was under their control. These defendants also allege that CS(OS) 273/1996 Sarvjeet had visited the testatrix towards the end of October, 1995 when he insisted on being given a copy of the Will, which was done.

7. The defendant Nos.1 and 2 contend that the Will referred to by Sarvjeet of 1986 was signed by Mr. Dinesh Behl and Mr. Pawan Sahni, his employee; they both knew the testatrix. They do not deny that Mr. Behl provided professional services to them but they say that he was known to the whole family including the plaintiff. Ritu and Menon state that Lajja Sareen was fully aware of everything around her and was of a perfectly sound mind while executing the Will which she did on her volition and while being fully conscious. They also deny that the two attesting witnesses did not visit the Suit property as alleged by the plaintiff. Ritu and Menon also allege that testatrix was aware that Sarvjeet was a non-resident with extensive property in the USA and had no intention of returning to India to live with her. They reiterate that the Will was executed volitionally and without exercise of any kind of control or undue influence by them. They also deny allegations of mis-representations and fraud. They assert that the Will is valid and can be enforced; according to them the Suit deserves to be dismissed and the plaintiff cannot seek the partition he claims.

8. The second defendant Beena in her written statement agrees with the suit allegations so far as they pertain to the surgery which took place in 1989 upon the testatrix. She, however, denies that the mental and physical capabilities of the deceased deteriorated in 1993-94. She also states that the testatrix was not dependent upon Ritu and Menon clarifying that when the testatrix was ailing, they looked after her, yet upon her return, she was looked after by her (Beena). It is submitted that in October, 1995, the testatrix was hospitalized and was taken care of by Beena; she remained unconscious for several days, but gained consciousness in the first week of November. Beena mentions that during her visit in October, 1995, she was not shown a copy of the Will but was informed that a new Will had been drawn up. Beena specifically states that whether the Will, dated 6.9.1995 is determined to be correct or wrong, as far as she is concerned, testatrix always wanted to protect her interests.

9. The earlier Will dated 29.04.1986 was exhibited as PW-1/1; the Will impugned by the Suit has been exhibited as DW-4/1A. The plaintiff has relied upon certain documents marked as Ex.PW-1/X1, PW-1/X3, PW-1/X4 PW-1/X5 and PW-1/X6 are day to day notes written by the CS(OS) 273/1996 testatrix. Ex.PW-3/1 is an earlier Will said to have been made by the testatrix in May, 1995. The plaintiff relies heavily on PW-1/D1 the letter dated 12.11.1989 by Ritu to Beena; reliance is also placed on a letter dated 20.06.1995 marked as Ex.DW-1/PX1.

10. Sarvjeet, the plaintiff examined himself as PW-1; no other witness was examined in support of the Suit. Ritu examined herself as DW-1; Shri Dinesh Behl was examined as DW-2; Shri Sanjay Beri was examined as DW-3 and Shri Navneet Bansal deposed as DW-4.

11. In his deposition, PW-1 supported the averments in the suit, alleging that his mother had mental limitations, lack of comprehension, memory loss and disorientation. He stated that she had trouble with her speech and had an uneven gait. PW-1 talks of having spoken to the defendants about the testatrix’s health and being informed that she was suffering and that according to the medical advice, there were neurological problems. He deposed having conversed with his mother in 1989 and forming an impression that she was very sick. He deposes that Ritu informed him that the testatrix suffered from fluid build-up in the brain which necessitated insertion of a shunt; he submits having purchased a shunt for her operation. According to him, the surgery resulted in improvement of gait, but other symptoms persisted. He learnt about relapse of his mother’s symptoms later, after returning. He also deposes having visited India in October and December, 1995 when the testatrix’s mind and health were very poor.

12. In his cross-examination, PW-1 mentions about having received a telephone call regarding the testatrix’s illness in 1989 from Ritu. He states that she also spoke to him about the testatrix’s lack of orientation, difficulty in speaking, lack of comprehension etc. PW-1 claims to have spent considerable time with the testatrix during 1990-93. He says that in early 1991 she was more communicative, when he spent lot of time chatting with her; thereafter in 1993, she became less mobile, shakier as well as distractive. Conversations with the testatrix were general in nature and mostly centered round the family. PW-1 stated that the testatrix was concerned about providing for Beena since she lived, unmarried in America. He concedes having talked to the testatrix’s doctor in 1995. He states that the testatrix used to call him on a regular basis in the USA and that she used to do this till the end. The witnesses’ knowledge was derived from information given by Ritu and Menon. When Lajja Sarin’s condition was CS(OS) 273/1996 stable, such communication was once in a month; but when the condition deteriorated, the communication was weekly or more frequent. PW-1 stated that Dr. Abby used to treat his mother; he states that the testatrix was member of Panchsheel Club, the Delhi Gymkhana Club, and was not totally bed ridden in 1993. He states that she was persuaded to get out of the bed and join others for lunch and dinner and she was fond of knitting. He re-collects that in 1991, she had knitted a blanket for his son. He also submits that the testatrix was aware of his fondness for pickles and sometimes she prepared it, which he used to take back with him to the U.S.A. PW-1 further states that the testatrix was an independent and self-respecting woman, who had her own resources.

13. PW-1 deposes that he heard from Ritu and Menon that the testatrix had been taken to Sir Ganga Ram Hospital sometime in end of March, 1995. He mentions about being unable to speak to the testatrix because she was mostly incoherent; was probably in May or June, 1995. The witness deposes having visited India in October, 1995; he states that the testatrix’s condition kept on improving and then there was a setback. According to him, she had difficulty in eating though she did not have any pain as demonstrated by her physician Dr. Abbay, who used to visit her couple of times a week. The witness claims that the testatrix was unable to recognize people and she also went into coma; he clarifies, that she “passed out”. He states that during his visit in October, 1995, she had lost her consciousness but when he left on

13.11.1995, she was not in a coma. He also states that the testatrix was not hospitalized during the period 26.10.1995 to 13.11.1995 and that during that time she was at home. PW-1 deposed having left for the USA in 1964; he conceded, while being questioned, in cross examination, that Ritu and Menon had been living in the suit property before 1979, during his father’s lifetime; the father died that year. He also admitted that the testatrix had day to day interaction with Ritu, Menon and Ratna. He denied suggestions about not being involved in decisions pertaining to his mother’s treatment, or that he did not give any financial contributions. He stated that all members of the family, including he, Ritu, Menon, Beena, and the testatrix’s brothers, etc. were involved in such decisions. He states that though he offered to bear the medical expenses in 1993, it was declined. CS(OS) 273/1996

14. Ritu, deposing as DW-1 spoke about the testatrix having been successfully operated for fluid buildup in her brain in August, 1989. According to her, the testatrix had prior to the execution of the Will dated 6.9.1995 made four other Wills to the best of her knowledge. The first was in 1980; the second was in 1986 and third was in 1989 or 1990 and the fourth Will was in 1995. She denied that in 1989 or any time thereafter the testatrix suffered from any mental or memory lapses, disorientation, or difficulty in speech. She also stated that the testatrix did not go into comma prior to her death and denied informing the plaintiff about Smt. Lajja Sareen’s inability to speak or suggesting that there was no point in talking to her. According to DW-1, the plaintiff was given a copy of the Will in October, 1995. In the cross-examination, DW- 1 conceded that the testatrix treated all her children with equal love and affection. She displayed awareness about the contents of the Will that had been executed in 1986. She denied the suggestion that the testatrix suffered from lack of co-ordination, disorientation and laps of memory and asserted that even prior to surgery, Smt. Lajja Sareen was absolutely normal. She clarified that prior to surgery she had minor symptoms like muscular pain in the legs. According to Ritu, the testatrix was admitted in March, 1995 in the Sir Ganga Ram Hospital because of low hemoglobin; and WAS diagnosed as a patient of anemia and stomach ulcer. She admitted to writing a letter Ex.PW-1/D1 and stated that she had written to Beena about their mother’s health condition in 1985. DW-1 also admitted having written DW-1/PX1. Ritu stated that Dinesh Behl was a family Chartered Accountant; she denied that in May, 1995, the testatrix was completely under her control and could do anything as per her (Ritu’s) commands. She states that at that time, the testatrix was not dependant on her and was not bed ridden and used to go out of the house. Ritu states that Navneet Bansal was an employee of the Dinesh Behl, that his employer provided services to the testatrix and, therefore, he used to attend to professional jobs. She states having no idea when the Will dated 6.9.1995 was signed. She denied any knowledge of Shri Rajeev Saxena or ever having met him.

15. DW-2 Dinesh Behl in his affidavit evidence deposes having been introduced to the testatrix by his previous partner Mr. Pawan Sahni, who left the firm in 1987. He also deposes becoming acquainted with the family of the testatrix and that his firm was preparing accounts, doing tax work and giving financial advice to the testatrix, Ritu and Menon. He states that even CS(OS) 273/1996 the plaintiff sought his advice on financial matters on some occasions when he was in India. DW-2 deposes having been instructed to prepare the testatrix’s Will in 1986, which was finalized and signed by her and witnessed by him (DW-2) and Pawan Sahni. Dinesh Behl deposes that in July, 1989, the plaintiff went to his office and informed him about his desire to give his share in the testatrix’s Will to Menon, upon which, he, DW-2, informed the plaintiff that it was up to his mother to decide what she wanted to do. He also states that in September, 1989, the testatrix called him and informed that though the plaintiff wanted to give his share to Menon, she wanted to give something and requested that a fresh Will be drafted. DW-2 also states that a draft Will was prepared in 1989 and sent to the testatrix. He mentions that again in 1991, Smt. Lajja Sareen called him and handed over a copy of a codicil which was finalized and sent back to her. He states having been contacted by Smt. Lajja Sareen in February, 1995 and being told that she wanted to change her Will and have a new one drafted. According to the instructions, she wanted to give Beena life interest of the first floor and to give the younger daughter Ritu, Menon and Ratna, her son in law and granddaughter, life interest on the ground floor and that only after the life interest, the property was to be divided into 1/3rd share each in favour of all her three children. DW-2 deposes that sometime in 1995 on her instructions that the Will had to be attested, Mr. Sanjay Beri and Navneet Bansal and Rajeev Saxena working in the tax division of his office, went to the testatrix’s house with a notary public. He states that Sanjay Beri gave him a copy of the notarized Will dated 6.9.1995 later.

16. In cross examination, he agreed doing professional work for Ritu and Menon; he also admitted that the testatrix’s condition deteriorated from 1988-89. DW-2 says that whenever he interacted with the testatrix, she was coherent and in control of her senses. He disclaimed awareness about lack of her short term memory in 1989, and relapse due to some complications, in 1990; he was aware of the surgery performed on her in 1989. He was aware that the testatrix was treated in the Ganga Ram Hospital in 1995; he however, did not know the details, and was unable to answer why she needed blood transfusion, etc. Though he stated remembering meeting her during April, to August, 1995, he was unsure later, and was not able to remember whether she suffered from dehydration shock. He was cross examined about the deposition in the affidavit regarding drafting of the 1986, a codicil, the circumstances whereby CS(OS) 273/1996 the plaintiff met him in 1989 and asked that his share should be given to Menon, and so on. He also stated that in February, 1995, the testatrix instructed him telephonically to draft a will. It was stated that though the will was dated February, 1995, when it was sent to the testatrix, she went to have it executed and registered before the Sub-Registrar, in May, 1995; she could not do so, since she did not carry any proof of identification. He denied having met the testatrix on 6-9-1995, or having any knowledge about her state of mind, at that time. He admitted that she was his client.

17. Shri Sanjay Beri deposed as DW-3; he spoke about a will dated 15-5-1995, signed by the testatrix at the Sub-registrar’s office, that day and that he signed as an attesting witness. He said that Shri Rajat Chopra was the other attesting witness. According to DW-3, this will dated 15th May, 1995 could not be registered because the testatrix was unable to produce any identification letter or proof. He was ignorant of any other will, to which Navneet Bansal or Shri Dinesh Behl were attesting witnesses.

18. Shri Navneet Bansal deposed as DW-4. He said that the testatrix had signed in his presence, and in the presence of the other witness, Shri Rajeev Saxena. He mentions that Shri Sanjay Beri, a senior member of the firm where he worked, asked him to accompany Shri Rajeev Saxena and a notary public to the testatrix’s house, for witnessing the execution of her will; he also states that he went there, and saw the testatrix sign on the will, which was signed by him and Rajeev Saxena, and also attested by the notary public. In cross examination, he stated having met the testatrix on two occasions; he could recollect that she was frail on the date when the will (marked by him as Ex. DW-4/1A) was executed by her. He mentioned that the date on the will had been changed; he denied the suggestion that Ritu and Menon, or either of them were present when the will was signed by the testatrix.

19. The Court had by its order had framed issues on 17.12.1998, on the basis of the pleadings; by subsequent order of 22.03.1999, an additional issue, [No. 1(a)] was framed. The issues on which the parties went to trial are as follows: -

1. Whether Smt. Lajja Sareen executed the Will dated 6.9.1995 as alleged in the written statement of defendant Nos.1-3; if so to what effect? CS(OS) 273/1996 1 (a) Whether the conditions imposed in paragraph No.5 of the alleged Will dated

05.09.1995 are void in law and not binding on the plaintiff and whether the alleged Will is in contravention of Section-114 of the Indian Succession Act?

2. If Issue No.1 is proved against defendant No.1, whether the property is not liable to be partitioned?

3. Relief. Issue No. 1

20. The plaintiff submits that the testatrix did not execute the Will; it is contended that her medical history for the period 1989-95 discloses deterioration in the general health; she underwent surgery in 1989 whereby a shunt was inserted near the base of her neck. Later there was a blockage and she suffered. The plaintiff points to instances where the testatrix fainted or fell down unconscious and had to be hospitalized.

21. The plaintiff argues that Will (DW-4/1A) was procured by undue influence. It is urged that the deceased testatrix was not of sound disposing mind and was unable to give knowledgeable consent to the contents and execution of the said Will. Here it is contended that the testatrix’s health was feeble from the year 1989 onwards and it progressively declined. It is submitted that the testatrix suffered from short-term memory loss, became depressive, occasionally did not recognize people and was suffering from dementia. In fact, around the middle of 1995, she was diagnosed with cancer of her stomach and her condition seriously deteriorated. The plaintiff argues that even though no specific medical evidence, exists, two letters of Ritu, written to the plaintiff and Beena speak volumes of the physical and mental condition of the testatrix. The letter dated 12th November (PW1/D1) states that the testatrix was suffering from dementia brought on by degeneration. Though, no year is mentioned in the letter, it pertains to the year 1989 which may be gathered by the reference to a surgery to insert a shunt in the testatrix’s brain, which took place in AIIMS that year; the year was admitted during arguments. The plaintiff refers to another letter dated 20th June (DW1/PX-1) confronted to DW-1, during cross- examination and she admitted that letter. The fact that this letter pertains to the year 1995 is evident as if discusses that the testatrix had been diagnosed with cancer of the stomach. It is submitted that the testatrix was diagnosed with cancer in CS(OS) 273/1996 June 1995, as admitted in the written statement of Defendant Nos. 1, 2& 3. In fact the year when the letter was written has been admitted during the course of arguments.

22. It is contended that the said facts establish that the testatrix’s medical condition was frail and she did not possess the mental capacity to give knowledgeable consent for the execution of a Will. It is also evident from the said letters that the testatrix was completely dependent on Ritu and Menon, for all her needs and thus they were in a position to exercise undue influence and control over her. It is argued that the defendants No.1, 3&4 did not lead evidence to rebut the plaintiff’s allegations, with regard to the testatrix’s medical condition.

23. According to the plaintiff, the execution of the Will is surrounded by suspicious circumstances. It is submitted that the law here is well-settled; which is that those who propound the Will have to remove the suspicious circumstances and further that if the propounder plays a prominent part in execution of the Will which confer substantial benefits on him or her that in itself is a suspicious circumstance. In this regard, the plaintiff relies on the ruling of the Supreme Court reported as Gorantla Thataiah v. Thotakura Venkata Subbaiah,(1968) 3 SCR 473, where the following observations of the Privy Council in Sarat Kumari Bibi v. Sakhi Chand 56 IA 62, were quoted and applied: “the principle which requires the propounder to remove suspicions from the mind of the Court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of the testator.” The plaintiff also relies on the judgments reported as Shashi Kumar Banerjee –vs- Subodh Kumar Banerjee AIR 1964 SC 529 and H. Venkatachala Iyengar v. B.N. Thimmajamma,1959 Supp (1) SCR 426. It is argued that fact that Ritu and her family members, the Menon and Ratna are given concurrent life interest in the property which virtually makes it impossible for the bequest in favour of the plaintiff to be enjoyed by him during his life time, points to their being instrumental in execution of such a will with such conditions. Further, the fact that the Will was been drafted by the Chartered Accountant of Ritu and Menon, and attested by his employees CS(OS) 273/1996 (i.e of Shri Dinesh Bahl) establishes that the defendants No.1 &3 played a prominent part in preparation and execution of the said.

24. Relying on plaintiff’s evidence, during his deposition and cross examination, it is contended by the first and third Defendants that the testatrix was in full control of her senses and was in a sound disposing mind, when she executed the will. It is urged that adverse inference has to be drawn against the plaintiff who was fully aware of the treatment of the mother by various doctors, but failed to summon any such witness to support his case that the deceased was not in a fit state of mind to execute the Will of 06.09.1995. It is submitted that Ritu, in her evidence explained about the testatrix’s health and her mental capacity. She stated that her mother was in a fit state of mind and in October, 1995 her mother gave the copy of the Will (of 6.9.1995) to her brother (ie the plaintiff). The defendants say that Ritu was cross examined in regard to the Will of 1986 and also about the surgical shunt brought by the plaintiff from USA in August, 1989. Ritu was confronted with two letters Exhibit PW1/ D1 and Exhibit DW1/PX 1. The intrinsic evidence in the said letters is to the effect that the Defendant No.1 attended on her mother and was concerned with her health and therefore expressed her emotional feelings to her sibling. The letter of 1995 clearly establishes that the mother was fully conscious of the surrounding circumstances but the daughter (Defendant No.1) did not want to inform that she was diagnosed of cancer. It is contended that the two letters therefore do not prove that the mother was not in a sound disposing mind or that Ritu and her husband exercised any undue influence.

25. It is submitted that the Defendant Nos.1 and 3 have not played any role in the execution of the Will. The Defendant No.3 is constituted the executor of the Will and on his demise the financial advisor of the Testatrix has been made the executor of the Will. The Will was proved by one of the attesting witness, Mr. Navneet Bansal in terms of Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act 1872. It is urged that the contents of the Will in fact would show the real intent of the Testatrix. The Will of 1986, (which has not been proved by the Plaintiff by producing the attesting witness as required under Section 63 (c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act) also stipulated that all the three legal heirs would enjoy the property in the manner stated in the CS(OS) 273/1996 said document. The intention of the testatrix in the Will of 06.09.1995 is to be gathered by reading the entire Will as a whole and keeping in view the surrounding circumstances.

26. The Defendant No.1 and 3 rely upon various judgments in support of their case with regard to proof of Will, its construction, intention of the Testator/ Testatrix etc. It is submitted that the correct principles of construing a will have been discussed in Navneet Lal v. Gokul, (1976) 1 SCC 630 where the court held that: “8. From the earlier decisions of this Court the following principles, inter alia, are well established: “(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal1) (2) In construing the language of the will the court is entitled to put itself into the testator’s armchair (Venkata Narasimha v. Parthasarathy2) and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense... But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. (Venkata Narasimha case and Gnanambal Ammal v. T. Raju Ayyar3) (3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer4) (4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das) (5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every CS(OS) 273/1996 testamentary intention contained in the will. (Ramachandra Shenoy v. Hilda Brite Mrs.)..”

27. It is argued that the facts alleged to be suspicious circumstances, are not so; in this respect, the defendants emphasize that the plaintiff was living abroad ever since he left India, in 1964. Though he maintained contact with his family members, his settling abroad meant that the testatrix turned to her daughter, Ritu and her son-in law, Menon; they had shifted to the suit property, after the plaintiff’s father’s death. The evidence also suggests that these two persons (Ritu and Menon) were with her till the end. The defendants argue that the evidence shows that they did not participate in the preparation or execution of the testatrix’s will, which was drafted under her instructions. It is argued that she was an independent person, and aware of her surroundings till the end. The attesting witness spoke and corroborated about due execution of the will. In the overall facts, the mere circumstance that the testatrix devised three life estates as intervening before the bequests in favour of her daughters, and son, did not mean that the will was either unnatural, or shrouded in suspicion.

28. Two things emerge from the above discussion. One, the execution of the will is contested; two, the plaintiff alleges that the testatrix was of not of sound and disposing mind, when the will was executed, and that she was “unduly influenced” by Ritu and Menon. Section 63 of the Succession Act and Section 68 of the Evidence Act spell out the

29. essential requirements of wills, and their proof, in a court of law. Section 63 states that: “63. Execution of unprivileged wills.—Every testator, not being a soldier employed in an expedition nor 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)-(b) * * * (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 and 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.” Section 68 of the Evidence Act “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 CS(OS) 273/1996 least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence: Provided….”

30. Section 68 of the Evidence Act provides the manner of proof of a document required by law to be attested. It states that such a document cannot be used as evidence till at least one attesting witness is called for the purpose of proving its execution, (if there such an attesting witness is alive), and subject to the process of the court and capable of giving evidence. Such witness has to be examined before the document can be used in an evidence. A combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, reveals that the propounder of a will has to prove that the will was duly and validly executed. That can be done by not merely by proving the testator’s signature on the will, but also establishing that attestations were made properly as required by clause (c) of Section 63 of the Succession Act. Section 68 of the Evidence Act does not require the examination of both or all the attesting witnesses. Yet, at least one attesting witness should be examined to prove the due execution of a will as mandated by Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. Therefore, it is imperative that one attesting witness has to be examined and he (or she) should be in a position to prove the execution of a will. The sole attesting witness so examined, should be able to establish the attestation of a will by him and the other attesting witness for proving there was due execution of the will. (See Janki Narayan Bhoir v. Narayan Namdeo