PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL) - 1 vs. M/S. SAKET APARTMENT (P) LTD.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI %

Judgment reserved on: 22.01.2025

Judgment delivered on: 18.03.2025 + FAO 283/2018

ASHVAL VADERAA

.....Appellant

versus

AMITABH NARAYAN & ORS

.....Respondent Memo of Appearance For the Petitioner: Mr. Ramesh Kumar, Learned Advocate For the Respondent: Mr. Suraj Prakash, Learned Advocate for R-1 Mr. Dayan Krishnan, Learned Senior Advocate with Mr. Ravikesh K. Sinha and Mr. Sanjeevi, Learned Advocates for R-2 & R-4 CORAM: HON'BLE MR. JUSTICE MANOJ JAIN JUDGMENT

MANOJ JAIN, J 1. Question posed herein is two-fold. (i) Firstly, whether Testatrix was in sound disposing mind at the time of execution of her „Will”. (ii) Secondly and more importantly, what should be the approach of court in granting probate where Will is executed by the maker, while admitted in a hospital. 2. Appellant takes exception to order dated 08.03.2018 passed by learned Additional District Judge (West), Tis Hazari Courts whereby while discarding the objections taken by the appellant herein, probate has been granted to respondent No.1. 3. For the sake of convenience, I would refer to the parties as per their nomenclature before the learned Probate Court. Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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S. No. Description Relationship with Deceased 1 Shri Ashwal Vaderaa (Objector) (son) 2. Shri Asheesh Vaderaa (son) 3. Shri Kanishka Vaderaa (son) 4. Smt. Monica Vaderaa (Wife of Shri Asheesh Vaderaa) (daughter-in-law) 5. Smt. Meetinder Vaderaa Wife of Shri Kanishka Vaderaa (daughter-in-law)

b) The parents and the husband of Testatrix had pre-deceased her. c) Testatrix executed her last Will on 05.02.2003 which was registered with the Sub Registrar-III New, Delhi. d) Such Will was stated to be her last Will and Testament. e) Testatrix made reference of immovable and movable properties Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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left by her and these are as under: -

LIST OF IMMOVEABLE PROPERTY LEFT BEHINDBY TESTATRIX

S.No. Description 1. E-24, N.D.S.E., Part – 11, New Delhi - 49 2. Co-ownership rights in lands at Lado Sarai at 5-A Mehrauli Road, New Delhi: (a) Khasra No.679/672/48/ 1, measuring 4 Bighas and 16 Biswas (b) Khasra No.679/ 6721 48 / 2 measuring 15 Biswas 3. Property situated at Vaderaa Farms, Station Road, Garhi, Haryana Gurgaon, Haryana

LIST OF MOVEABLE PROPERTY

S.No. Description 1. F.D.R. in the Bank of Rajasthan Ltd. E-17, 1st Floor, South Extension 11, New Delhi 2. F.D.R. in the Central Bank of India M-2, South Extension 11, New Delhi 3. Bank Account in the Bank of Rajasthan Ltd. E-17, 1st Floor, South Extension 11, New Delhi

f) The Testatrix had appointed petitioner Mr. Amitabh Narayan as Executor of the Will. g) She expired on 24.04.2007. h) The probate petition was filed which accompanied verification of Mukul Bhatnagar and Dr. Vinod Rai who claimed that they were the witnesses of the abovesaid Will and were present when the Testatrix had affixed her signatures on said Will. Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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had been pursuing such litigation through Mr. Kamal Narayan, Advocate and it was not believable that his son (petitioner Amitabh Narayan) would be appointed by her as administrator or Executor of the Will. 12. It was also contended that no reason had been assigned in the Will for unequal and unfair distribution and moreover, it was impossible to imagine that Testatrix would execute Will for the benefit of one who had rather humiliated her and entangled her in litigation. 13. Based on the pleadings, the learned Probate Court framed following issues: - “1. Whether late Smt. Karuna Raj Vadera duly executed Will dated 05.02.2003 in her sound disposing mind? OPP. 2. Whether petitioner being Executor of Will dated 05.02.2003 of Smt. Karuna Raj Vadera is entitled for grant of Probate as claimed? OPP 3. Relief” 14. In order to prove his case, the petitioner examined PW-1-Dr. Vinod Rai (attesting witness) and PW-2 Mr. Mukul Bhatnagar (attesting witness). 15. Indeed, such Will had been executed by the Testatrix, while being admitted in Mool Chand Hospital. It looks perplexing and baffling to comprehend, as to why such a vital fact, had not been divulged in the probate petition. 16. Though there is no mandate of law that any such Will has to be compulsorily registered but fact remains that Will in question was a registered Will and as per the case of the petitioner, the concerned Sub- Registrar, on a request made in this regard, had come to the abovesaid hospital and registered the Will after due examination of the Testatrix. 17. Unfortunately, even such important aspect that the Sub Registrar had Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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come to the Hospital has not been revealed in the probate petition. 18. Dr. S K Thakur was examined as CW1. He was, reportedly, working as Consultant Gastroenterologist at Mool Chand Hospital in the year 2003 and Ms. Karuna Raj Vaderaa was stated to be under his care. When he entered into witness box on 20.03.2017, he was shown one certificate dated 03.02.2003 (Ex-CW-1/1) which he admitted issuing.

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i. Testatrix remained admitted in two different hospitals. Her initial admission was in Mool Chand Hospital from 31.01.2003 Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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to 07.02.2003. Since her condition did not improve and some surgical intervention was required, she was, reportedly, shifted to Ganga Ram Hospital where she remained admitted from 07.02.2003 to 14.02.2003. Such vital fact that Testatrix was in hospital when the Will was executed has not even been whispered in the entire petition. Nobody knows as to who got her admitted. Nobody knows as to who bore her medical expenses. Moreover, no such family member who remained with her during her such hospitalization, has even graced the witness box. ii. Mr. Kumar, learned counsel for the Objector does admit that even the Objector is her son but since she seems to have been admitted by the other son, it was obligatory and mandatory for such other son to have entered into witness box. Such other son could have provided much needed clarity about medical condition and sound disposing mind of the Testatrix. iii. Nobody ever knew as to who had drafted the Will. It surfaced only during the appeal that it was petitioner only who had drafted the same. Being petitioner, there was no one who could have prevented him to disclose the same during trial. iv. There is nothing which may indicate that the Testatrix was in sound disposing mind when the Will was allegedly executed by her. The date of execution of such Will is 05.02.2003, but there is no certificate of any doctor of Mool Chand Hospital certifying that on said date i.e. on 05.02.2003 she was Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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physically and mentally fit to execute a Will. Such Will is a complicated one running into 12 pages and, therefore, keeping in mind the fact that the Testatrix was admitted in the hospital, all such suspicious circumstances should have been appropriately clarified but nothing has been done to elucidate those. v. Neither the Executor of the Will nor the beneficiary of the Will have entered into witness box. They must have been in the Hospital with the Testatrix during the period of her hospitalization and, therefore, it should have been apprised by them as to why there was a sudden need of executing a Will, when she rather required a surgical intervention. vi. It is a case where the Sub-Registrar had rather, as projected, come to Mool Chand Hospital for effecting registration of the Will. For any such execution, happening at a place other than the office of Sub-Registrar, there are certain compulsory pre- requisites and there is nothing on record which may indicate that any such pre-requisites were ever complied with. vii. In any such situation when somebody executes a Will in a Hospital and the maker of the Will is an aged and infirm person, Sub Registrar has to record his complete satisfaction about the mental and physical health of such person. In the case in hand, there is nothing which may show whether such Sub- Registrar had even tried to contact the Medical Superintendent or any attending Doctor under whose supervision, the Testatrix Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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remained admitted. There is nothing which may indicate that any such Doctor had assured the Sub-Registrar that the Testatrix was in sound disposing mind. viii. It was also imperative for the petitioner to have examined such Sub-Registrar but it was never even contemplated. ix. There is also no record which may indicate that any request in advance was sent to such Sub-Registrar for registering the Will at the Hospital. It is also not clear as to who kept the Will, after its execution. x. As per the Will, the Testatrix wanted to create a trust with the name of “Karuna Raj Vaderaa Charitable Trust”. Since she remained alive for around four years after the execution of Will and since nothing was done by her for the purposes of creating such Trust, perhaps, she was not even aware about creation of any such Trust. xi. The alleged previously registered Will dated 07.10.2002 has neither been pleaded nor proved. xii. It was Mr. Asheesh Vaderaa who was calling the shots and got the Will in question prepared, while knowing fully-well that his mother was not in sound deposing mind. xiii. Since neither the Executor nor Mr. Asheesh Vaderaa himself graced the witness box, the initial onus does not stand discharged.

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Sr. no. Title On the point of 1. i) Leela and Others. Vs. Muruganantham and Others.; 2025 SCC OnLine SC 16 ii) Meena Pradhan and Others Vs. Kamla Pradhan and Another; 2023 SCC OnLine SC 1198 iii) Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and Others; (2006) 13 SCC 433 iv) Bharpur Singh and Others Vs. Shamsher Singh; 2008 SCC OnLine SC 1867 v) H. Venkatachala lyengar Vs. B.N. Thimmajamma and Others; 1958 SCC OnLine SC 31 vi) Smt Jaswant Kaur Vs. Smt Amrit Kaur and Others; 1976 SCC OnLine SC 368 vii) Shashi Kumar Banerjee and Others Vs. Subodli Kumar Banerjee since deceased and after him his legal representatives and Others; 1963 SCC OnLine SC 114 viii) Uma Devi Nambiar and Others Vs. T.C. Sidhan (Dead); 2003 SCC OnLine SC 1371 ix) Harish Chander Kawatra Vs. State & Others; 2009 SCC OnLine Del 1480 x) Sita Kashyap Thru LRs Vs. Harbans Kashyap &Ors.; 2013 SCC OnLine Del 1971 xi) Yashoda Gupta Vs. Suniti Goyal and others; 2001 SCC OnLine Del 383 Suspicious Circumstance 2. i) Benga Behera and Another Vs. Braja Kishore Nanda and Others; 2007 SCC OnLine SC 699 ii) Vijay Kumar Tiwari Vs. State and Anr.; 2008 SCC OnLine Del 682 iii) Raja Ram Singh Vs. Arjun Singh &Anr.; 2002 SCC OnLine Del 281 iv) Ajit Singh vs Nand Singh and Others; 1982 SCC OnLine Del 154 v) Desh Raj Gupta Vs. State and Others; 2010 SCC OnLine Del 2356 vi) Vijay Kumar Banerjee Vs. Arun Kumar Chakravarty and others; 2003 SCC OnLine All 1106 vii) Vidhyadhar Vs. Manikrao and Another; 1999 SCC OnLine SC 294 Onus to prove the Will is always on Propounder Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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i. The nature of inquiry to be conducted by any probate Court is a summary one and its scope and ambit is very limited, as such Court is, merely, to ascertain whether there is requisite compliance of the relevant provisions of Indian Succession Act, 1925 or not. The prime duty of the Court is to find out whether the Will has been executed in the presence of two or more witnesses, and whether, at least one such attesting witness has entered into the witness box and has proved the execution of the Will. ii. There is no suspicious circumstance of any nature whatsoever and, the Testatrix was, though, admitted in Mool Chand Hospital but was of sound disposing mind. iii. Reliance has been placed upon the testimony of Dr. S.K. Thakur who has, in no uncertain terms, deposed that Testatrix was of sound disposing mind at the relevant time. Such testimony coupled with the testimony of the two attesting witnesses, clearly, suggests that the Will is unblemished. iv. The sound medical condition of the Testatrix also stands corroborated from the fact that she died approximately four years after the execution of the above said Will dated 05.02.2003. v. Mere fact that there was unequal distribution amongst the natural heirs cannot, in itself, be taken as a suspicious circumstance. vi. There is also nothing on record which may indicate that there Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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was any conflict of interest between the Testatrix on one side and the propounder on the other. vii. The Objector has pointed out certain discrepancies between the two Wills submitted during trial i.e. Will produced by the Executor (Ex-PW1/A) and the Will produced by the official from the office of Sub Registrar Office (ExRW-1/A) and these are, merely, in the nature of typographical discrepancies and do not, even otherwise, materially alter the bequest and these might have happened because of the fact that the execution of Will had taken place at a Hospital and, therefore, no significance can be attached to such discrepancies. viii. Mr. Amitabh Narayan, Mr. Asheesh Vaderaa and Mrs. Monica Vaderaa were never involved either with respect to execution or with the registration of the Will. ix. The assertion that execution and registration was at behest of Mr. Asheesh Vaderaa is totally false. Testatrix and her son- Mr. Asheesh Vaderaa, were on good terms and, in fact, she completely relied on him and trusted him extensively. There was never any acrimony between them, at any point of time. Moreover, there is nothing which may indicate that Mr. Asheesh Vaderaa has got a lion‟s share under the Will, supplementing that the contentions in this regard have been made, simply, to prejudice the mind of the Court. 31. Mr. Krishnan, learned Senior Counsel also relies upon the following precedents: - Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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Sr. no. Title On the point of 1. i) Meena Pradhan and Others Vs. Kamla Pradhan and Another; 2023 SCC OnLine SC 1198 ii) Uma Devi Nambiar and Others Vs. T.C. Sidhan; (2004) 2 SCC 321 Suspicious Circumstances 2. i) Gian Chand and Others Vs. State of Haryana; (2013) 14 SCC 420 Adverse inference cannot be drawn in relation to an aspect, without having given witness an opportunity to explain that aspect.

Person, not coming with clean hands, is not entitled to any relief. 5. i) Ravindra Nath Mukherjee and Another Vs. Panchanan Banerjee and Others; (1995) 4 SCC 459 Person close to maker of Will cannot be suspected merely because he is Executor. Will, if voluntary, has to be accepted. 6. i) P.S. Sairam and Another Vs. P.S. Rama Rao Pissey and Others; (2004) 11 SCC 320 Appreciation of evidence 7. i) Sridevi and Others Vs. Jayaraja Shetty and Others; (2005) 2 SCC 784 ii) Meenakshiammal (Dead) Through Lrs and Others Vs. Chandrasekaran and Another; (2005) 1 SCC 280 iii) Durlabh Chandra Bhattacharjee Vs. Atul Barthakur; (2005) 09 GAU CK 0068 iii) Daulat Ram and Others Vs. Sodha and Others; (2005) 1 SCC 40 Onus to prove the Will is always on Propounder Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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Will during interval in which he is of sound mind. Explanation 4.—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.”

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requires attestation by minimum two witnesses, though, it is not obligatory for any such propounder or petitioner to examine both of them. The important aspect is the presence of the testator when the witnesses attest and testimony of one of such witnesses. In this regard, reference can be made to Section 67 and 68 of Indian Evidence Act, 1872 (Sec 65 and 67 of Bharatiya Sakshya Adhiniyam, 2023).

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Meena Pradhan vs Kamla Pradhan (supra) relied upon by both the parties. In the above said case also, the Hon‟ble Supreme Court, after taking into consideration various previous judgments, culled out the principles. The relevant paras of said judgment read as under:- “9. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator‟s property during his lifetime to be acted upon on his/her death of the testator. Since the testator/Testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation.

(1994) 5 SCC 135 (3- Judge Bech), Janki Naryan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91 (2-Judge Bench) Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3-Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 (3-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will:

i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;

ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

iii. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:

(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will; Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary; (c) Each of the attesting witnesses must have 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 acknowledgment of such signatures; (d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;

iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

v. The attesting witness should speak not only about the testator‟s signatures but also that each of the witnesses had signed the Will in the presence of the testator;

vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;

vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;

viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.

ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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time of execution; testator executed the Will while acting on his own free Will;

x. One who alleges fraud, fabrication, undue influence etcetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.

xi. Suspicious circumstances must be „real, germane and valid‟ and not merely „the fantasy of the doubting mind‟. Whether a particular feature would qualify as „suspicious‟ would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.

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is surrounded by suspicious circumstances and, therefore, the court needs to consider factors, inter alia, sound, certain and disposing state of mind of the testator at the time of execution. It has also been observed therein whether a particular feature would qualify as „suspicious‟ would depend on the facts and circumstances of each case. Any circumstance, raising suspicion legitimate in nature, would qualify as a suspicious circumstance, including a feeble mind. 45. Let me now weigh up the suspicious circumstances, alleged herein. 46. The suspicious circumstances highlighted by the Objector, primarily, revolve around two facets. 47. Firstly, Testatrix was admitted in the hospital at the relevant time and there is nothing on record which may remotely indicate that she was in sound disposing mind. 48. Secondly, there is whole lot of cloud under what circumstances, the concerned Sub-Registrar had come to the hospital. The Objector also expresses astonishment as to where are the mandatory pre-requisites. It is argued that there is nothing which may indicate that any advance information was sent to office of Sub-Registrar. He also raises his eyebrow the manner in which the sub-Registrar has gone ahead with the execution, without even bothering to contact the concerned doctor under whose examination and supervision, the Testatrix was admitted in the hospital. 49. Therefore, it will be appropriate to first deal with the above said vital aspects. 50. As noticed already, any and every circumstance is not a suspicious circumstance. Even where any beneficiary takes active participation in Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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execution of the Will, it has been held that such fact, by itself, is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. At times, mere presence of the beneficiary at the time of execution would not be enough to prove that the beneficiary had taken prominent part in the execution of the Will. Reference in this regard be made to Pentakota Satyanarayana vs. Pentakota Seetharatnam, (2005) 8 SCC 67. 51. In Hari Singh & Anr Vs. The State & Anr. 2010 (120) DRJ 716, this Court observed that law does not prescribe or expect that only very close family friends or associates should witness Will. It also observed that courts are not expected to be satisfied that a bequeathal is rational or not; what has to be considered is whether the bequest was so unnatural that the Testator could not have made it. In Hari Singh (supra), the Hon‟ble High Court made reference to Jagdish Lal Bhatia vs Madan Lal Bhatia: 2008(100) DRJ 98 which deals with the legal burden of proof when a Will is propounded and also spelt as to what would constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last legal and valid custom of the testator. These principles are as under: “I. The legal burden to prove due execution always lies upon the person propounding a Will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is last Will of a free and capable testator. II. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by the law. The contestant opposing the Will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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contents of the Will and in sound disposing capacity executed the same. (see the decision of the Supreme Court in Madhukar D. Shende v Tarabai Aba Shedge, AIR 2002 SC 637). III. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of Will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of Wills are not rules of laws but are rules of prudence. IV. Expanding on the care and caution to be adopted by the courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw & Tr. 431 In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the Will is in a language not spoken or understood by the Executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the Will. V. One form of affirmative proof is to establish that the Will was read over by, or to, the testator when he executed it. If a testator merely casts his eye over the Will, this may not be sufficient. VI. Courts have to evaluate evidence pertaining to the circumstances under which the Will was prepared. If a Will is prepared and executed under circumstances which raise a well grounded suspicion that the Executor did not express his mind under the Will, probate would not be granted unless that suspicion is removed. VII. A word of caution. Circumstances can only raise a suspicion if they are circumstance attending, or at least relevant to the preparation and execution of the Will itself. VIII. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. Instance of suspicious circumstances would be alleged signatures of testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable and unfair. IX. Suspicious circumstances are a presumption to hold against the Will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the Will. X. A Will is normally executed by a person where he intends to alter the rule of succession or where he desires a particular form of inheritance and to that extent, nature of bequest is not of much substance to invalidate a Will, but consistent view taken by the courts is that this could be treated as a suspicious circumstance. What weightage has to be attached to this suspicion would depend upon case to case. XI. Suspicion being a presumptive evidence, is a Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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weak evidence and can be dispelled.”

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Narayan) over the phone and told him that she wanted to make minor changes in certain clauses of Will and communicated such changes to him over the phone and on such instructions, Mr. Amitabh Narayan generated two more printouts of such changed Will which were also got collected by Testatrix through her representative on same day i.e. on 05.02.2003. He also claimed that the date as 05.02.2003 was mentioned in the Will as per the request and the instructions of the Testatrix. He also revealed that same evening, the Testatrix again called him to inform that she had executed the Will in Mool Chand Hospital and had even got the same registered and that she had made him (Mr. Amitabh Narayan) Executor of such Will. 56. He also claimed that such original Will, after it was duly registered, was sent by her to him in a sealed cover through her representative and thereafter, such Will remained in his possession till it was submitted before the probate Court. 57. Interestingly, Mr. Amitabh Narayan also claimed in his such written submissions that he was not present at Mool Chand Hospital at the time of execution/registration of Will and it appeared that by mistake, the Testatrix might have signed a printout which was already lying with her before the date of execution and which was required to be altered and that she also signed the other printout, which was incorporating the changes, which had been sent to her by him on 05.02.2003. He has, thus, tried to explain the differences in the two copies of the Wills, in the above manner. 58. The question is how to take these belated revelations? 59. I strongly feel that these disclosures cannot be kept aside in an unconcerned manner. Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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- In ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer authorised to accept the same for registration or deposit: Provided that such officer may on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a Will, and accept for registration or deposit such document or Will.” 80. Obviously, it is not a case where the registration has taken place at the residence of Testatrix but keeping in mind the spirit and objective of the abovesaid provision, it can be assumed that such registration can even take place at a hospital. 81. However, wherever such execution takes place at a hospital, the task becomes much more onerous and as a necessary consequence, the initial onus on the part of any propounder also becomes extra-rigorous. In such a situation, it is rather obligatory for any such petitioner to, categorically, demonstrate that at the relevant time when the Will was executed in the hospital, the Testatrix was in sound disposing mind and also that all the formalities with respect to summoning of a Sub-Registrar to a hospital were duly carried out. 82. Here, as already stated above, the petitioner assumed his job to be over by examining the two attesting witnesses. 83. Let‟s assume a situation where such Objector does not even choose to lead evidence. 84. Whether merely on the basis of the testimony of the attesting witnesses, a court, in such a situation, can reach a definite conclusion that the Testatrix was in a sound disposing mind and that all such requisite Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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formalities regarding sending request to Sub-Registrar stood clearly proved on record. 85. The answer has to be an emphatic „no‟. 86. As noted already, neither any medical record has been placed by the petitioner himself, nor has the other son, who must be taking care of his mother, thrown some light over the same. Her medical condition could have been confirmed by those family members who got her admitted. It really does not matter whether they were also beneficiaries. No doctor or any medical certificate issued by such doctor for said date, is before us to vouch for her sound disposing state. 87. There is also no record suggesting sending of advance information to the concerned Sub-registrar and, therefore, it is really surprising to understand as to how the onus stood shifted on to the Objector. 88. Thus, quite evidently, the initial onus was never discharged by the petitioner in the desired manner. 89. Of course, the two attesting witnesses entered into witness box but in view of the peculiar facts of the present case, that was not, in itself, sufficient. 90. Let me now come to the Will. 91. Such Will has been proved as Ex-PW-1/A. 92. In such Will, the Testatrix has claimed as under:- “I am advanced in age but mentally alert and sound and to obviate any dispute about the succession to my estate, I am executing this Will in respect of my moveable and immovable properties. I am executing this Will on my own, voluntarily without any pressure from any quarter.” Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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of such maker of the Will. There is nothing which may indicate that the concerned Sub-Registrar had met any doctor that day or had assured himself about the medical condition of Testatrix. Without even bothering to verify the identity of the Testatrix, he simply endorsed that she had executed the Will on Medical ground on the basis of some medical certificate issued by Dr. Thakur, which was not even retained by him. He does not even record anywhere that he had met Dr. Thakur that day or that he had called Dr. Thakur at the time of registration or execution of Will. Dr. Thakur also nowhere deposed that he ever met such Sub-Registrar at the hospital that day. 126. To have complete clarity about the abovesaid aspects, the ideal scenario was to have examined the above said Sub-Registrar. His examination was, virtually, sine qua non to clear the air. 127. Only he could have apprised the Court as to under what circumstances, he had gone to hospital for registration. He could have apprised as to where is such written request to him. He could have apprised as to how and when the requisite fee in this regard had been paid or deposited. He could have been deposed as to whom he contacted in the hospital to assure himself about the identity and medical condition of Testatrix before registering document. 128. Unfortunately, such Sub-Registrar has not been examined by the petitioner which, itself, puts a big question mark with respect to the fact whether the Testatrix was, actually, in a sound disposing mind or not at the relevant time on 05.02.2003. Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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deposed that immediately thereafter, Mr. Mukul Bhatnagar and he himself also signed the Will as attesting witnesses. 134. Before touching his cross-examination, I need to highlight one material aspect. 135. In his entire affidavit of examination-in-chief (Ex. P-1), he did not even whisper about the other attesting witness Ms. Ritu Suri. His such affidavit is conspicuously silent even with respect to mere presence of Ms. Ritu Suri at the time of execution of such Will. 136. Though Dr. Vinod Rai claims that he was practicing since 1989 but when certain questions were put to him to assess his knowledge about the medical terms, he failed to provide satisfactory answers as he was unable to explain about the full form of several such terms viz. ANTG, SAIO & PSVT. He failed to apprise as to why injection NTG is administered to anyone. Though it may not be of great relevance in any other situation but keeping in mind the fact that Testatrix was admitted in hospital, this Court expected that being doctor, he would be aware about these medical terms, more so when he also endorses in writing about her sound condition. As noticed, the other two witnesses, while appending their signatures, did not mention anything about the sound mind and mental alertness of the Testatrix whereas Dr. Rai has mentioned so while putting his signatures. 137. He admitted in his further deposition that he knew that Testatrix had cardio-respiratory and intestinal problem since 2000. He claimed that he was called by the Testatrix in the hospital on 05.02.2003. She had called him up on telephone and told him that she was going to execute a Will and, therefore, requested him to attest the same. He reached hospital at about Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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3.00 to 3.30 PM and stayed there for about 30 to 45 minutes. He also deposed that he had learnt about her hospitalization in advance from Ms. Asheesh Vaderaa. He deposed that Testatrix took about 15-20 minutes in reading out the Will. He also deposed that he was not carrying any identification card with him to show that he was a doctor. He also deposed that he had not seen history-sheet of Testatrix though she had intestine obstruction problem at the relevant time. He claimed that he was told in this regard by the Testatrix as well as Mr. Asheesh Vaderaa that she was suffering from intestine obstruction problem. He, however, deposed that he did not know as to who got her admitted in the hospital and what medicines had been prescribed to her. He also deposed that none of the doctor of the aforesaid hospital had written anything on the Will in his presence. He also deposed that he did not know whether any officer from the office of Sub- Registrar was present in the room at that time or not. He also claimed that he had met one lady Ms. Suri or Ms. Puri, once prior to 05.02.2003 and he met her perhaps on a dinner in the house of Testatrix. 138. In cross-examination, he also claimed that there was no formal introduction with that lady on 05.02.2003. He claimed that he did not make any enquiries from Testatrix as to from where she had got the Will prepared and to whom she had given her property. Surprisingly, he also claimed that he did not know as to who prepared his affidavit Ex. P-1. In his further cross-examination, he also claimed that no certificate was given by any doctor at the hospital at the time of execution of such Will. 139. As regards Sub Registrar, he deposed that he did not know whether Sub Registrar had written or made any endorsement on the Will. He claimed Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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that such Sub Registrar did not read over the Will to the Testatrix. He also does not know whether the Sub Registrar had done anything after the execution of the Will. He denied that the Will was a fabricated one which was prepared in connivance with Mr. Asheesh Vaderaa and other witnesses. He never visited Testatrix at Ganga Ram Hospital. So much so, he claimed that he was not aware about her admission in Ganga Ram Hospital. Most surprisingly, he also claimed that he did not meet any family member of Testatrix in the hospital at the time of execution of Will. 140. Though, initially, he feigned ignorance about certain medical terms & conditions, when further question was put to him in this regard on 07.03.2012 in cross-examination, he came up with an evasive answer by deposing that a patient, who was suffering from high blood pressure and was not passing stool for two-three days and was suffering from SAIO and to whom injection Nitroglycerin had been administered, may or may not be in a serious condition. Such deposition rather raises eyebrows regarding Testatrix, being in sound condition. 141. Be that as it may, even if, for a moment, it is assumed that Dr. Rai was also one of the attesting witnesses, his testimony does not inspire much confidence as regards physical and mental condition of Testatrix. His endorsement on the Will, therefore, also does not have much reliability. 142. PW2 Mr. Mukul Bhatnagar is the other attesting witness and his examination-in-chief is also virtually on the same lines. 143. In his such affidavit (Ex. PW2/A), he also claimed that Testatrix had signed the Will in his presence and in the presence of Dr. Vinod Rai and Sub Registrar. His examination-in-chief also does not contain even a whisper Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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about the presence of Ms. Ritu Suri. He knew Testatrix as he was her Chartered Accountant. He also deposed that he was called by the Testatrix herself for the execution of said Will. He reached her room in the hospital at about 2.00 PM. He deposed that he did not get the pass prepared for such visitation. In his cross-examination through he claimed that there was one more lady Ms. Ritu Suri present in the room of the hospital but also claimed that he did not know her. He does not recall whether during his stay in the aforesaid room, any nurse or any other staff of the hospital visited there but as far as visit of any doctor is concerned, he was very specific and deposed that during his stay in the room, no doctor from the hospital visited that room. He also does not recollect whether official from the Sub Registrar office had consulted any doctor from the hospital. He knew Mr. Amitabh Narayan who was the lawyer of Mr. Asheesh Vaderaa, Mr. Ashval Vaderaa and Testatrix. His deposition is in synchronization with the testimony of other attesting witnesses as he also deposed that Will was read by Testatrix and she took around 20-35 minutes to read it out and after reading out the Will, she signed the Will. However, as regards any endorsement made by the Sub Registrar, he was blissfully ignorant as he deposed that he could not recollect whether such official had written anything on the Will or not. He also could not throw any light with respect to the overwriting appearing in the dates by contending that he did not recollect whether these were made in his presence or not. 144. When the Will was shown to him, he admitted that such official from the office of Sub Registrar had not written the name of Dr. Vinod Rai. He Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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supplemented that Sub Registrar had only written his name as well as the name of Mrs. Suri. 145. PW2 Mukul Bhatnagar also does not recall whether any medical certificate of Testatrix was handed over to the Sub Registrar at the time of registration of the Will in the hospital to show her medical condition. He does admit that Testatrix was undergoing certain medical problems but supplemented that he was not aware whether she had undergone any operation or not. in his cross-examination too, he claimed that he did not know Mrs. Ritu Suri. It was suggested to him that he had forged the Will in connivance with Mr. Asheesh Vaderaa to which he answered in negative. He denied that no Sub Registrar had come to the room of Testatrix on the day of execution and registration, and also denied that her aforesaid Will was forged and fabricated and that no such Will was executed by her at the hospital or anywhere. 146. I may also highlight two important aspects related to testimony of said two attesting witnesses. 147. I have already extracted the relevant portion where there is also endorsement of Sub-Registrar. There is reference of names of attesting witnesses near such endorsement and if the same is to be believed, the attesting witnesses were Mr. Mukul Bhatnagar and Ms. Ritu Suri and no one else. 148. There is no whisper about the name of Dr. Vinod Rai. 149. Had he been also an attesting witness and was also present when the concerned Sub-Registrar had come for Registration of Will, his name would have certainly been mentioned there. The omission in this regard, coupled Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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with the manner in which his name is reflected in the last cannot be overlooked and such facts, virtually, invalidate his presence even at the time of execution and registration of the Will. Importantly, the Sub-Registrar does not sign on the last page where only such endorsement and signatures of Dr. Rai appears. Moreover, if at all, Dr. Rai was there in the hospital, there was no one to have prevented the Sub Registrar in not mentioning his name on the Will on the page where Sub-Registrar had given his endorsement. Moreover, being a doctor, Sub Registrar would have been, naturally, tempted to enquire from him directly about the health of Testatrix, instead of merely making reference to some medical certificate. 150. Secondly, both the attesting witnesses i.e. Mukul Bhatnagar and Dr. Vinod Rai, in their examination-in-chief have not even whispered about the presence of Ms. Ritu Suri and their cross examination would indicate, as if they never knew such Ms. Ritu Suri beforehand. Fact remains that prior to the Will in question, the Testatrix had also executed another Will on 07.10.2002. Such Will is also a registered one. It is though on record, but not proved by the petitioner. However, if such Will is to be believed then there were three attesting witnesses even at that time i.e. Dr. Vinod Rai, Mr. Mukul Bhatnagar and Ms. Ritu Suri. In such a situation, it cannot be believed that they were not knowing her already. 151. It is also perplexing that none of the attesting witnesses met any of the family members of the Testatrix at Mool Chand Hospital. 152. The medical record has been placed by Objector only and in his examination-in-chief, he rather claimed that since intestines of her mother were blocked and since she had not passed stool for nine days, she was in Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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very uncomfortable condition and was hypertense. He also deposed that because of drugs, his mother was not physically and mentally fit. Thus, the Objector seems to be in thick of things. He deposed about her medical condition and he also produced the medical record. There is no challenge to such testimony in the sense that no other family member has entered into witness box to rebut the same or to prove the same in discharge of primary onus. 153. Since, Testatrix was hospitalised and was in a serious condition, her family members would have been around. However, testimony of attesting witnesses is conspicuously silent about presence of any such family member including Mr. Asheesh Vaderaa. They do not see or meet any family member, at all. This does not look plausible. Assuming that the Testatrix had sent request directly to them, it does not look believable that these witnesses would not have even seen any family member at the hospital. At least, one such other family member should have entered into witness box and should have assured the Court about the sound disposing condition of the Testatrix. Mr. Jai Narayan, advocate was also present at the time of alleged execution and he also did not enter into witness box. 154. I have already referred to the testimony of both the attesting witnesses and they both deposed that the Testatrix had read out the Will for thirty minutes. It also seems puzzling and surprising as the Will is not a small one. It is running into twelve pages and it has not been explained as to why the Testatrix, while admitted in a hospital and while undergoing treatment, would have to, herself, read out the entire Will. Such version does not convince the Court. Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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Q. Are you in a position to produce any certificate of any treating doctor of your mother wherein it is specifically mentioned that "your mother was not in sound mind" and that "her condition was unstable"? Ans. My answer to this question is as stated above. It is wrong to suggest that I am avoiding answers to the Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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above questions as the same are unfavorable and inconvenient to me.

Q. Are you in a position to produce any document or show in any of the documents already produced by you that the treating doctors of Moolchand Hospital ever advised you that she should be shifted or admitted to Intensive Care Unit because of her serious health condition? Ans. I have already filed all the original medical documents on record apart from them I have no other medical document. It is wrong to suggest that I am avoiding answer to the above question as the same is unfavorable and inconvenient to me.

Q Are you in a position to produce any document in support of your aforesaid statement i.e. to show that on 4th February, 2003 her pulse rate had gone upto 250 per minute? Ans. I did not state that her pulse rate had gone upto 250 per minute However, as per my earlier statement dated 07.12.2015, 1 had mentioned that the pulse rate may have gone upto 250 per minute because on 04.02.2003 she had PSVT wherein as per medical knowledge, the pulse rate goes up till 250 per minute in such conditions.

Q. On 07.12.2015 you stated in answer to my question that "I can make efforts to produce above said reports" meaning thereby day to day reports of your mother's health during the period 31.01.2003 to 07.02.2003 when she was admitted to Moolchand Hospital. Did you make any effort to collect those reports for their production in the court or you did not make any effort? Ans. I have not brought the above said documents because I did not make any efforts.

Q I put it to you that while you have produced only the discharge summary and investigation results of Mrs. Karuna Raj Vaderaa of Mool Chand Hospital for the period 31.01.2003 to 07.02.2003, you are 'intentionally withholding Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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the daily recordings and notes of nurses and treating doctor with relevant treatment sheets. Ans. It is wrong.”

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Thus, her testamentary capacity should have been corroborated in much more effective manner, instead of leaving doubts and dodges. 160. A caveat, right here. 161. Merely because maker of Will is admitted in a hospital would not, ipso facto, mean that he is not in sound disposing mind. This court does not say so, at all. Capacity of any such maker to understand the testament cannot be undermined and understood as impaired, merely on account of old age and hospitalization. The suspicion arises because of holding back best evidence and other attendant circumstances. Testatrix had already executed a registered Will in 2002 and if her condition was not serious, as claimed by the petitioner, where was the „tearing hurry‟ to get another Will executed in hospital, more so when she, rather, required surgical intervention. 162. The hush and hurry is the main worry. 163. The discharge summery (Ex. OW1/5) indicates that her condition became little concerning on 04.02.2003 and she was discharged on 07.02.2003 as she required surgical intervention. She was shifted to another hospital for better management. In between, the Will has been executed and, therefore, the court must be provided extra guarantee about her sound disposing mind on 05.02.2003. It cannot be presumed so, merely because Will is attested. 164. In Niranjan Umeshchandra Joshi (supra), it has been observed by Hon‟ble Supreme Court that only the concerned attending doctor can state about the frame of mind of such maker. Though, Dr. Thakur is stated to be such doctor, he never certified about medical condition of Testatrix on 05.02.2003 and also never met Sub-Registrar. Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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“21. The law relating to the Wills is clear that the proof of due execution of Will always lies upon its propounder who must satisfy the judicial conscience that the instrument is the last Will of a free and capable testator. Though no specific standard of proof can be enunciated which must be applicable to all the cases as every case depends on its circumstances, courts must be vigilant and zealous in examining evidence for the reason a Will is a solemn document and speaks for the dead. Suspicious circumstances are the presumptions which hold against a Will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the Will. Unless suspicious circumstances are satisfactorily explained by removing the cloud of suspicion, a court would not readily accept the document propounded as the last legal and valid testament of the deceased. It may be true that nature of proof required to prove a Will is not different from that required to prove other documents Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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except the requirement of attestation prescribed under Section 63 of the Indian Succession Act but it cannot be lost sight of that what distinguishes a Will from other documents is that the testator is not available to testify the same as his last Will. Thus, an element of solemnity is introduced in the decision. The proof of a Will is to be tested on the satisfaction of a prudent mind. Unnatural disposition, improbable or unfair in the light of relevant circumstances or other indications that the disposition was not the result of the testator's free Will and mind cast a very heavy initial onus on the propounder and unless satisfactorily discharged the court would not be justified in treating the document as the last Will of the testator. A sound mind required under Section 59 of the Indian Succession Act may not mean that the testator should have his mental faculty in their fullest vigour, but it means that at least the testator should have the capacity to understand the nature of his property; memory to remember the relations and persons normally having claim on his bounty and also a judgment.”

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the question as to whether an instrument produced before the court is the last Will of the testator, the court decides a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. 168. In the present case, my foregoing discussion would indicate that there are several suspicious circumstances which have not been explained and elucidated by the propounder in any manner whatsoever. Though the propounder is not expected to prove the Will by mathematical precision and is required to demonstrate execution in terms of the essential statutory requirements under the Act, where there are specific averments of existence of suspicious circumstances, Court would expect elimination of such suspicion by the propounder itself. Only, thereafter, such Will can be taken as a „validly executed last Will‟. There cannot be any confusion with respect to discharge of onus. The initial onus is always on propounder which becomes heavier when the opposite side raises suspicion. The onus on to adversary would shift only where such adversary pleads forgery, fabrication, coercion, undue influence etc. Here, the primary and basic onus has not been discharged to the satisfaction of the court. Various suspicious circumstances and glaring infirmities in the instant case can be summed up as under: - a) The Testatrix was admitted in the hospital and such fact is neither stated in the Will nor in the petition. b) The petitioner had drafted the Will and such fact was never divulged during the trial. c) The Testatrix was earlier admitted in Mool Chand Hospital but since her condition deteriorated and there was urgent need of surgical Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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intervention, she was shifted to Ganga Ram Hospital. In such a situation, extra assurance was required from petitioner and propounder about the sound disposing mind of the Testatrix, which is lacking. d) No family member, except the Objector himself, has entered into witness box. All others are mute spectators in the trial. Mr. Asheesh Vaderaa, presumably the one taking care of his ailing mother when she was in the hospital, also does not bother to enter into witness box. His shying away from deposing cannot be taken casually. He also does not feel it sensible to place on record medical documents to firmly demonstrate that the Testatrix was in a sound disposing mind at the relevant time. No doctor is called from the said hospital with relevant record. One official was summoned from the above said hospital, that too by the Objector, who rather claimed that the record was no longer available with them. e) After the first draft of the Will was prepared, the Testatrix, allegedly, directed to incorporate certain changes and accordingly, another draft was prepared but as per the propounder himself, the Testatrix had signed the „first draft‟ as well as the „second draft‟ before the Sub- Registrar and, therefore, it is not clear as to what was the exact desire and last testament of the maker of the Will –one mentioned in the first draft or one in the second draft. Though certain changes may be mere clerical, there are differences qua bequeath as well, albeit, not very substantial. The petitioner, who had drafted these Wills, does not grace the witness box. Thus, the best evidence has been held back and Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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primary and initial onus does not stand discharged, merely by examining the two attesting witnesses. f) The testimony of two attesting witnesses does not inspire enough of confidence. There is strong doubt whether Dr. Vinod Rai was, actually, present when the Will was being registered in the hospital. g) The deposition of CW1 Dr. Thakur also does not inspire much confidence as his evidence does not depict his presence at the crucial juncture i.e. at the time of the execution of the Will in the hospital. The medical certificate purportedly issued by him has been produced belatedly and moreover, it, being prior in time, is of not much consequence. h) There is nothing to show that the Sub-Registrar had ever contacted any doctor or had made any inquiry himself from the Testatrix about her sound disposing mind and health condition. Normally, the Court does not insist for examination of Sub-Registrar, who discharges his official duties while registering any such document but in an exceptional situation like the one here, when a Sub-Registrar was rather requested to register the Will at hospital, he is under „indispensable obligation‟ to make himself „sure and certain‟ about the sound disposing mind of such maker of the Will who is an octogenarian and admitted in hospital. It is imperative for him not only to make specific inquiry in this regard from the attending doctor but also to „personally enquire‟ from such maker about its sound disposing state. The evidence on record does not suggest so. Mere reference of one medical certificate, which is not even contemporary, Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

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is of no avail and cannot be sufficient to hold that Testatrix was perfectly alright even at execution of Will. The fitting response, if at all, could have come from such Sub-Registrar but he was not even called for deposition. To dispel the dark clouds hovering over such execution, the propounder should have, himself, made a request to call such Sub-Registrar in Witness Box. Again, the best evidence has been held back for the reasons, best known to propounder and Mr. Asheesh Vaderaa. In H Venkatachala Iyengar (supra), a celebrated case which is frequently cited in probate matters, the Sub-Registrar had gone to the residence of the maker of the Will who was ill and bed-ridden. The Hon‟ble Supreme Court observed that non-examination of the concerned Sub-Registrar, in whose presence the documents was registered, was to be taken as a circumstance. i) There is also nothing on record which may indicate as to in what manner the request, if any, was sent to Sub-Registrar to come at the Hospital and to register the Will. There is no record to the above said request. Generally, intimation is sent in advance along with medical certificate and a copy of the document to be registered but in the present case, nothing was produced before the Trial Court to show compliance thereof. j) Though, this Court may assume that the Sub-Registrar had come at the hospital, the crucial aspects - whether Testatrix was, actually, in a sound disposing mind or not and whether such vital fact was duly inquired into by Sub-Registrar, do not stand duly proved. Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified

______________________________________________________________________________________ FAO 283/2018 Page 58 of 58 Ashval Vaderaa vs Amitabh Narayan & Ors.

MANOJ JAIN, J March 18, 2025/sw

Digitally Signed By:SONIA THAPLIYAL Signing Date:18.03.2025 19:42:52 Signature Not Verified