How to appreciate evidence of proof of execution of will?
The respondent/defendant no. 1 in his own evidence has identified the signatures of the mother Smt. Devki Devi Rode on the said Will. I do not find any bar to the signatures of the executant of a Will being proved by the propounder of the Will. A Division Bench of this Court recently in Subhash Nayyar Vs. Registrar, University of Delhi MANU/DE/0246/2013 concurred with the decision of the Madras High Court in Jambunatha Iyer Vs. Sankari Ammal MANU/TN/0735/1993 laying down that though Section 69 requires fulfillment of two conditions but the emphasis therein is on fulfillment only of the condition of proof of attestation by one of the attesting witnesses and which when proved is evidence of everything upon the face of the instrument since it is to be presumed that the witness would not have subscribed his name in attestation of that which did not take place. It was further held that Section 69 nowhere prescribes that both requirements have to be fulfilled by the same witnesses and the propounder of the Will can identify the signatures of the executant.
26. As far as the aspect of proof of neither of the attesting witnesses being found is concerned, the contesting respondent/defendant no. 1 has deposed having personally visited the address of the other attesting witnesses mentioned under his signatures on the Will and the said attesting witness being not found thereon and new address not being available with any of the neighbours also. Not a single question was put to him in cross examination on the said aspect. The inference in law from non-cross examination of a witness on a particular aspect of his deposition is well settled i.e. that the cross examining party is deemed to have accepted the said part of the deposition. Reference in this regard can be made to Laxmibai (Dead) Through LR's Vs. Bhagwant Buva (Dead) Through LR's MANU/SC/0072/2013 : (2013) 4 SCC 97, Rajinder Pershad (Dead) by LR's Vs. Darshana Devi MANU/SC/0453/2001 : (2001) 7 SCC 69 and judgment dated 19th September, 2013 in RFA No. 411/2000 titled Chanchal Dhingra Vs. Raj Gopal Mehra. The learned Addl. District Judge is thus clearly in error in holding the contesting respondents/defendants no. 1&2 to have not proved that no attesting witness to the Will was to be found.
27. As far as the testamentary capacity of the mother Smt. Devki Devi Rode is concerned, merely from the factum of old age and her suffering from cancer it cannot be presumed that she lacked testamentary capacity; the Will was executed in 1994 but she fell ill with cancer only in 1996. It is for a person challenging a Will to not only plead but prove that the testator/testatrix lacked testamentary capacity but also to give specific reasons therefor. Admittedly there are no pleadings of the lack of testamentary capacity of Smt. Devki Devi Rode. The wife of the appellant/plaintiff appearing as a sole witness on his behalf in her affidavit by way of examination-in-chief did not even utter a word of Smt. Devki Devi Rode not having testamentary capacity. In her cross examination she admitted the photograph on the registered Will to be of Smt. Devki Devi Rode. In her cross examination also, nothing came out challenging the testamentary capacity.
28. I am of the view that in the absence of any challenge to the testamentary capacity, the Will cannot be disbelieved on that ground.Rather in the cross examination of the contesting respondent/defendant no. 1 it has come to light that Smt. Devki Devi Rode at the time of execution of the Will was able to walk and she used to read newspapers. No further cross examination was done on the said aspect. To hold that a Will can be disbelieved on the ground of lack of testamentary capacity without even the person propounding the Will being put to notice of such challenge, would be contrary to the basic principles of natural justice. The Supreme Court in Niranjan Umesh Chandra Joshi Vs. Mrudula Jyoti Rao MANU/SC/8788/2006 : (2006) 13 SCC 433 has held that there exists a distinction where the suspicions are well founded and cases where there are only suspicions and that existence of suspicious circumstances alone may not be sufficient and the Court may not start with a suspicion and a resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion. Even otherwise in the preponderance of probabilities I am inclined to believe the said Will.
IN THE HIGH COURT OF DELHI
RFA 765/2006
Decided On: 25.10.2013
Appellants: Surender Rode
Vs.
Respondent: Madan Mohan Rode and Ors.
Vs.
Respondent: Madan Mohan Rode and Ors.
Hon'ble Judges/Coram:Rajiv Sahai Endlaw, J.
