Delhi High Court: Rajiv Sahai EndLaw, J., while addressing a very significant issue revolving around ‘Will’ expressed that:
Litigation in a Court cannot be permitted to be played like a game of one-upmanship or by springing surprises or of ambush.
Adding to the observations, Court in light of ‘unsoundness of mind’ expressed that:
“…to prove unsoundness of mind, one would be required to prove consistent conduct to prove unsoundness of mind, even if medical records of unsoundness of mind are not available.”
Vide an order 25-11-2019, issues were framed in the Test. Cas.11/2018, wherein the second issue was :
“Whether the deceased Bhagwanti Devi, on 5th May, 1983, was not of sound disposing state of mind and thus the document even if executed by her, is not her Will? OP (Relatives 10,11&12)”
Further, the Senior Counsel’s contention that the onus for the said issue should be on the petitioner, was rejected with the reason that it is for the person disputing the soundness of mind to establish the same, with the petitioner having a right of rebuttal; else, the presumption is, of soundness of mind of a living person.
Relation No. 10 filed the instant application pleading the following:
(a) he had preferred a SLP(C) No. 5603-04/2020 challenging the order dated 25-11-2019, to the extent placing the onus of issue no.(ii) on him and which SLP was disposed of with liberty to him to make a formal application and request this Court to reformulate the issue no.(ii);
(b) this application is being filed in pursuance thereto;
(c) the onus to, in the first instance show that the testatrix was of a sound disposing mind i.e. had the testamentary capacity to execute the Will, is on the propounder of the document claimed to be the Will;
(d) only if the propounder of the document, claimed to be the Will, establishes the testamentary capacity of the testator/testatrix, does the document stand proved as the Will;
(e) the petitioner also in the issues proposed by him had placed onus of the said issue on himself; and,
(f) one who asserts has to prove and the other cannot be called upon to prove the negative.
Analysis, Law and Decision
Section 59 of the Indian Succession Act, 1925 provides that every person of sound mind not being a minor may dispose of his property by Will.
Explanation 1 thereto provides that a married woman may dispose by Will any property which she could alienate by her own act during her life.
Explanation 2 thereto provides that persons who are deaf or dumb or blind are not thereby incapacitated from making a Will if they are able to know what they do by it.
Explanation 3 thereto provides that a person who is ordinarily insane may make a Will during an interval in which he is of sound mind.
Explanation 4 thereto provides that no person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
Section 12 of the Contract Act defines the ‘Soundness of mind’ with respect to the purpose of contracting and the said provision would have application in the matter of soundness of mind requisite for making of a ‘Will’ as well.
Bench stated that the above two provisions have a common thread.
Further, the Court added that when a document propounded as Will is contested, what would be required to be proved is only that what is in issue and only if the party disputing the document propounded as a Will disputes/controverts that the testator/testatrix, at the time of making the Will was of sound mind, would soundness of mind be in issue and required to be proved.
Bench elaborated in light of the Evidence Act that:
The common course of natural events and human conduct is of soundness of mind and unsoundness of mind an aberration. If a testator/testatrix has led a normal life, performed day to day functions in the normal course of human conduct, the presumption under Section 114 of the Evidence Act would be of soundness rather than unsoundness of mind.
In the present case, applicant/relation 10 is the son of the daughter of the deceased and with regard to his contention with regard to the denial of the soundness of mind of the deceased seems contradictory. Bench noted that, if the deceased was throughout her lifetime appending signatures and not putting her thumb impression as pleaded by Relation No. 10, the presumption is of her being of sound mind.
Another significant point noted was that the question of her being under influence of the petitioner would arise only if the deceased was in a position to be influenced i.e. of sound mind; if she was of unsound mind, the question of her being influenced would not arise.
Bench referred to its decision in Budh Singh v. Raghubir Singh, 2015 SCC OnLine Del 14528, wherein it was held that:
though the onus to prove the ‘Will’ may be on the propounder thereof but a challenger to the Will is required to, in the pleadings specifically plead the grounds on which a challenge is sought to be made to the Will so as to let the propounder of the Will know the grounds on which the Will is contested and that a challenger to the Will cannot be allowed to, without taking any pleading or any specific grounds of challenge spring surprises and at the stage of arguments contend that this has not been proved or that has not been proved.
With regard to the present matter, Court stated that Relation No. 10 cannot be permitted to taking advantage of having the onus of the issue as to the soundness of mind placed on the petitioner, steal a walkover by ultimately arguing that the petitioner has failed to prove soundness of mind.
The question of onus of proof as to facts in issue depends upon the facts, pleadings and documents in each case.
Before parting with the present order, Bench added a caveat: The Order/Judgment of a Court exercising testamentary jurisdiction, as this Court is exercising in the subject case, is a Judgment/Order in rem, which establishes a document propounded as a Will as the Will from the death of the testator and renders valid all intermediate acts of the executor as such.
A Testamentary Court is a Court of Conscience.
Since the said judgment/order binds not only the parties to the proceeding but also others, the Court, in exercise of such jurisdiction, requires proof in accordance with the law of the document propounded as a Will, even if not opposed by the near relatives of the deceased.
However, when the near relatives have contested the document propounded as a Will and which contest is not a sham or make-belief, the Court can mould the trial by placing the onus appropriately in terms of the pleadings and the documents in a case.
Further, the High Court added that it is not the case of the applicant/Relation No.10 Arun Sood that he was not in a position to know about the soundness of mind of the testatrix or was far removed from the testatrix; on such pleading, it can perhaps be said that the petitioner should discharge the onus.
Bench also referred to the decision of Supreme Court in Surendra Pal v. Saraswati Arora (1974) 2 SCC 600.
Hence, in light of the above discussion, High Court held that in the absence of a suggestion that the testator was feeble-minded or so completely deprived of his power of independent thought and judgment, the presumption was drawn and the Will held to be genuine.
In Prem Singh v. Birbal, (2006) 5 SCC 353 presumption that a registered document is validly executed was drawn and it was held that the onus to prove would be on the person who rebuts the presumption.
In view of the above discussion, High Court found no ground for review of the order dated 25-11-2019 and hence dismissed the application. [Ashok Baury v. State, Test. Cas. 11 of 2018, decided on 15-01-2021]
Advocate who appeared before this Court:
For the Petitioner: Mr Prosenjeet Banerjee and Ms Shreya Singhal, Advs.
For the Respondent: Mr Atul Gupta and Mr Jayant Mehta, Advs.
