Will

Exhibit of – Proof of Will -- Mere exhibiting a document (Will) does not dispense with its proof and the parties relying upon it, are bound to prove the same, in accordance with law -- Admissibility or otherwise of the Will and whether the evidence is beyond pleadings or not, will be decided by the trial Court at the time of final decision of the case. Prema v. Rajbir, 2011(2) L.A.R. 603 (P&H).

Proof of -- Deposition by one attesting witness in clear and unambiguous terms stated that not only he but, the other attesting witness to the Will was also present at the time the Testator affixed his signature on the Will -- Requirement of attestation of the Will by two witnesses each of whom has seen the Testator signing or affixing his mark has been satisfied – In the matter of proof of documents as in the case of the proof of Wills, it is idle to expect proof with mathematical certainty -- Test to be applied always is the test of satisfaction of a prudent mind in such matters – Will in question duly registered document is not surrounded by any suspicious circumstances of any kind and is proved to have been duly and properly executed. Gopal Swaroop v. Krishna Murari Mangal & Ors., 2011(2) L.A.R. 634 (SC).

Proof of -- In cases where the document sought to be proved is required by law to be attested, the same cannot let be in evidence unless at least one of the attesting witnesses has been called for the purpose of proving the attestation, if any such attesting witness is alive and capable of giving evidence and is subject to the process of the Court. Gopal Swaroop v. Krishna Murari Mangal & Ors., 2011(2) L.A.R. 634 (SC).

Proof of -- It is evident that a Will is required to be attested by two or more witnesses each of whom has seen the Testator signing or affixing his mark on the Will or has seen some other person signing the Will in the presence and by the direction of the Testator or has received from the Testator a personal acknowledgment of the signature or mark or his signature or the signature of such other person and that each of the witnesses has signed the Will in the presence of the Testator -- Section 68 of the Evidence Act is against the use of a Will in evidence unless one attesting witness has been examined to prove the execution. Gopal Swaroop v. Krishna Murari Mangal & Ors., 2011(2) L.A.R. 634 (SC).

Proof of -- Placement of the signature of the Testator on the Will -- Signature of the Testator appear at the right hand bottom part of the Will -- The placement of the signature on the document is, therefore, appropriate and clearly suggestive of the fact that the document was intended to be given effect to as a Will. Gopal Swaroop v. Krishna Murari Mangal & Ors., 2011(2) L.A.R. 634 (SC).

Proof of -- Placement of the signature of the Testator on the Will -- Signature of the Testator appear at the right hand bottom part of the Will -- The placement of the signature on the document is, therefore, appropriate and clearly suggestive of the fact that the document was intended to be given effect to as a Will. Gopal Swaroop v. Krishna Murari Mangal & Ors., 2011(2) L.A.R. 634 (SC).

Proof of -- Section 63 would show that proof of execution of a Will would require the following aspects to be proved: (1) That the Testator has signed or affixed his mark to the Will or the Will has been signed by some other person in the presence and under the direction of the Testator -- (2) The signature or mark of the Testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a Will -- (3) That the Will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the Will or has been seen by some other person signing the Will in the presence and by the direction of the Testator or has received from Testator a personal acknowledgement of the signature or mark or the signature of each other person -- (4) That each of the witnesses has singed the Will in the presence of the Testator. Gopal Swaroop v. Krishna Murari Mangal & Ors., 2011(2) L.A.R. 634 (SC).

Registration of – Inability of person to go to Registrar office -- If a person is unable to go to the office of Sub Registrar for some reason to get the document registered, then on request of the party, the Sub Registrar comes at the spot and registers a document on deposit of some fee. Nachhattar Singh v. Angrez Kaur, 2011(2) L.A.R. 46 (P&H).

Suspicious circumstances –  Unlike other documents, a will speaks after the death of the testator and as such when it is propounded, the testator is no longer in this world to say whether it is his will or not -- It is due to this fact that courts generally call for a strict proof of the will -- In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. Rajinder Kaur v. Manjit Kaur and others, 2011(2) L.A.R. 440 (P&H).

Suspicious circumstances –  Working place of the testator is District Courts where he is permanent government employee of the office of Deputy Commissioner -- Testator was working in that office where hundreds of documents are registered daily -- Therefore, he is expected to understand the value of the document and the procedure for preparation of the same -- He was having the knowledge/value of a registered document i.e., if a document is duly registered, the chances of doubting its genuineness and authenticity are very less -- Moreover, the testator knew that such important documents are to be scribed from a regular deed-writer and entry/endorsement should be made in the register and such a document should not be kept unregistered -- If the testator would execute the will, he will call some respectables of his confidence from City or atleast from the vicinity, where he permanently reside -- No special reason has come on record as to why the testator opted to execute the will at his house, that too, from a professional semi illiterate driver -- No special affinity or love and affection of the testator with the marginal witnesses is explained -- Signatures of testator are at two places at the will in the blue oml while the entire body of the will is in the black ink -- Thumb impression of one of the marginal witnesses is in ink and the ridges are not visible on this thumb impression -- Testator knew that thumb impression on a document is always obtained with ink pad -- Propounder of the will, has totally failed to discharge the heavy onus upon her explaining the suspicious circumstances surrounding the execution of the will and in establishing that the Will in question was a valid and genuine document duly executed by deceased – Will is held to be forged, fictitious and fake document. Rajinder Kaur v. Manjit Kaur and others, 2011(2) L.A.R. 440 (P&H).

Suspicious circumstances -- Execution of the Will in favour of a total stranger to the exclusion of testator's own sons and daughters is a grave suspicious circumstance surrounding the impugned Will – It is also significant to notice that the alleged Will is dated 31.12.1997 and testator died on 24.03.1998, but the will was got registered on 18.09.2000 i.e 2 ½ years after the death of the deceased -- Will was scribed by layman and not by professional Deed Writer -- One cousin of testator is a practicing advocate -- It has also come in evidence that the deceased had cordial relationship with the plaintiffs -- Will is, held to be, shrouded with so many suspicious circumstances. Jagtar Singh v. Mangat Saini and others, 2011(2) L.A.R. 205 (P&H).

Suspicious circumstances – Onus of proof -- Where there are suspicious circumstances surrounding the will, the onus heavily lies on the propounder to explain the circumstances to the satisfaction of the court before the court accepts the will as genuine. Rajinder Kaur v. Manjit Kaur and others, 2011(2) L.A.R. 440 (P&H).

Suspicious circumstances -- Will is a document like tissue paper -- When a drop of suspicion falls on the Will, it will dissolve -- Testator, an old aged lady, died within 24 hours from the alleged execution of unregistered Will – Will was allegedly executed in the hospital -- Doctor has not made any endorsement on the Will that the testator was in sound disposing mind and understood her good and bad -- Will is attested by two marginal witnesses and one of them, was withheld and was not examined -- It was necessary to examine him to clear the doubts arisen after the testator died on the next day -- No indoor medical file of the testator was brought on record -- Ailment and the diagnosis of the testator have not come on record -- No effort was made to get the Will registered with the Sub Registrar -- Only explanation given is that the Sub Registrar was not in his office, which is falsified from the statement of Registry Clerk -- Another strong suspicious circumstance is that real nephew submitted an application before the Joint Sub Registrar in his office, that testator aged about 80 years, lying unconscious in the Hospital, has not executed any Will or other document and she was unable to speak – Men may tell lie but the documents cannot -- Mark ‘A’, a note on the letter-pad written by Doctor that the testator was fit to make a statement is of no help as the doctor neither signed the original Will nor signed the register of Petition Writer -- Such like note written on his letter pad can be written later on -- Even the Petition Writer did not mention the place of scribing the document in his register -- No Ration Card, Voter Card, Joint Photograph of the beneficiary family or any other document has been brought on record to prove that testator was residing with beneficiary or that he or his family was rendering services to her -- No special reason has been mentioned in the Will to exclude the other heirs -- Will is surrounded by suspicious circumstances. Nachhattar Singh v. Angrez Kaur, 2011(2) L.A.R. 46 (P&H).