# KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS

- **Citation:** [2020] 6 S.C.R. 357
- **Court:** Supreme Court of India
- **Decided:** 2020-05-19
- **Case number:** Civil Appeal No. 3688 of 2017
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kavita-kanwar-v-mrs-pamela-mehta-ors-34588
- **Pages:** 81

## Headnote

Will - Probate of - A Will dated 20.05.2003 was executed by
the mother of the contesting parties-testatrix in presence of her
younger daughter-appellant alone - Testatrix expired on
21.05.2006 and left behind two daughters and a son - In the said
Will, the testatrix gave the entire share in her immovable property to
the appellant and made her the major beneficiary under the Will -
Appellant filed the petition seeking probate and that was declined
both by the Trial Court and the High Court - The Trial Court and
the High Court have concurrently found some suspicious
circumstances which are of material bearing and which have
remained unexplained - Some of such suspicious circumstances
founded, inter alia, are: a) non-inclusion of the only son and other
elder widowed daughter of the testatrix in the process of execution
of the Will and their exclusion from the major part of the estate - b)
the manner of writing and execution of Will with technical and legal
words - c) there was no clarity about the construction of the property
to be carried out by the appellant - d) there were contradictions in
the statements of the witnesses and the appellant - On appeal, held:
The unexplained unequal distribution of the property is confounded
by two major factors related with making of the Will in question:
one, the active role played by the appellant in the process and
second, the virtual exclusion of the other children of testatrix in the
process -The testatrix was living on the ground floor of the estate/
immovable property in question and her elder widowed daughterrespondent no.1 was living at the first floor - There was no reason
that in normal and ordinary course, the testatrix would not have
included her elder widowed daughter in execution of the Will in
question, particularly when her elder widowed daughter was also
taking care of her - The provision of construction of the property
in the Will is inexecutable and unenforceable and elder widowed
[2020] 6 S.C.R. 357
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daughter is not likely to get anything - There is also no evidence of
strained relationship between testatrix and her son - As far as
attesting witnesses are concerned, the appellant asserted in her
testimony that the testatrix discussed the contents of the Will with
the attesting witnesses but both the witnesses consistently maintained
that the contents were not discussed with them - Further, there was
also dispute regarding number of pages of Will and vacillating stand
of the appellant in that regard - As per s.81 of the Succession Act,
if there is an ambiguity or deficiency on the face of a Will, no extrinsic
evidence as to the intentions of the testator shall be admitted - The
appellant failed to clear the suspicious circumstances - Thus, the
cumulative effect of these suspicious circumstances is that it cannot
be said that the testatrix was aware of and understood the meaning,
purport and effect of the contents of the Will in question - The Will
in question cannot be probated - The reasons and material findings
of the Trial Court and the High Court affirmed.
Will - Probate proceedings - Non-filing of written statement
- Held: By the very nature and consequence of probate proceeding,
filing or non-filing of written statement or objections by any party
pales into insignificance and is of no effect - The probate proceeding
is not merely inter-partes proceeding but leads to judgment in rem
and, therefore, even when no one contests, it does not ipso facto
lead to grant of probate - The probate is granted only on proof of
Will as also on removal of suspicious circumstances, if there be any,
to the final satisfaction of the conscience of the Court.
Dismissing the appeal, the Court
HELD: 1. There has not been any question on the
testamentary capacity and soundness of mind of the testatrix;
and her handwriting as also signatures on the Will in question
are also beyond controversy. However, the Trial Court and the
High C

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KAVITA KANWAR
v.
MRS. PAMELA MEHTA & ORS.
(Civil Appeal No. 3688 of 2017)
MAY 19, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Will - Probate of - A Will dated 20.05.2003 was executed by
the mother of the contesting parties-testatrix in presence of her
younger daughter-appellant alone - Testatrix expired on
21.05.2006 and left behind two daughters and a son - In the said
Will, the testatrix gave the entire share in her immovable property to
the appellant and made her the major beneficiary under the Will -
Appellant filed the petition seeking probate and that was declined
both by the Trial Court and the High Court - The Trial Court and
the High Court have concurrently found some suspicious
circumstances which are of material bearing and which have
remained unexplained - Some of such suspicious circumstances
founded, inter alia, are: a) non-inclusion of the only son and other
elder widowed daughter of the testatrix in the process of execution
of the Will and their exclusion from the major part of the estate - b)
the manner of writing and execution of Will with technical and legal
words - c) there was no clarity about the construction of the property
to be carried out by the appellant - d) there were contradictions in
the statements of the witnesses and the appellant - On appeal, held:
The unexplained unequal distribution of the property is confounded
by two major factors related with making of the Will in question:
one, the active role played by the appellant in the process and
second, the virtual exclusion of the other children of testatrix in the
process -The testatrix was living on the ground floor of the estate/
immovable property in question and her elder widowed daughterrespondent no.1 was living at the first floor - There was no reason
that in normal and ordinary course, the testatrix would not have
included her elder widowed daughter in execution of the Will in
question, particularly when her elder widowed daughter was also
taking care of her - The provision of construction of the property
in the Will is inexecutable and unenforceable and elder widowed
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daughter is not likely to get anything - There is also no evidence of
strained relationship between testatrix and her son - As far as
attesting witnesses are concerned, the appellant asserted in her
testimony that the testatrix discussed the contents of the Will with
the attesting witnesses but both the witnesses consistently maintained
that the contents were not discussed with them - Further, there was
also dispute regarding number of pages of Will and vacillating stand
of the appellant in that regard - As per s.81 of the Succession Act,
if there is an ambiguity or deficiency on the face of a Will, no extrinsic
evidence as to the intentions of the testator shall be admitted - The
appellant failed to clear the suspicious circumstances - Thus, the
cumulative effect of these suspicious circumstances is that it cannot
be said that the testatrix was aware of and understood the meaning,
purport and effect of the contents of the Will in question - The Will
in question cannot be probated - The reasons and material findings
of the Trial Court and the High Court affirmed.
Will - Probate proceedings - Non-filing of written statement
- Held: By the very nature and consequence of probate proceeding,
filing or non-filing of written statement or objections by any party
pales into insignificance and is of no effect - The probate proceeding
is not merely inter-partes proceeding but leads to judgment in rem
and, therefore, even when no one contests, it does not ipso facto
lead to grant of probate - The probate is granted only on proof of
Will as also on removal of suspicious circumstances, if there be any,
to the final satisfaction of the conscience of the Court.
Dismissing the appeal, the Court
HELD: 1. There has not been any question on the
testamentary capacity and soundness of mind of the testatrix;
and her handwriting as also signatures on the Will in question
are also beyond controversy. However, the Trial Court and the
High Court have concurrently found some such suspicious
circumstances which are of material bearing and which have
remained unexplained. Put in a nutshell, the unexplained
suspicious circumstances so found are: (a) that appellant, the
major beneficiary, played an active role in execution of the Will
in question and attempted to conceal this fact before the Court;
(b) that there had not been any plausible reason for non-inclusion
of the only son and other daughter of the testatrix in the process
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of execution of the Will and for excluding them from the major
part of the estate in question; (c) that there was no clarity about
the construction supposed to be carried out by the appellant; (d)
that the manner of writing and execution of the Will with technical
and legal words was highly doubtful; and (e) that the attesting
witnesses were unreliable and there were contradictions
in the statements of the witnesses. Because of these major
circumstances coupled with various supplemental factors, the
Trial Court and the High Court felt dissatisfied on the root
question as to whether the testatrix duly executed the Will in
question after understanding its contents. [Para 27][422-B-E]
2. There is no doubt that any of the factors taken into
account by the Trial Court and the High Court, by itself and
standing alone, cannot operate against the validity of the
propounded Will. That is to say that, the Will in question cannot
be viewed with suspicion only because the appellant had played
an active role in execution thereof though she is the major
beneficiary; or only because the respondents were not included
in the process of execution of the Will; or only because of unequal
distribution of assets; or only because there is want of clarity
about the construction to be carried out by the appellant; or only
because one of the attesting witnesses being acquaintance of the
appellant; or only because there is no evidence as to who drafted
the printed part of the Will and the note for writing the opening
and concluding passages by the testatrix in her own hand; or
only because there is some discrepancy in the oral evidence led
by the appellant; or only because of any other factor taken into
account by the Courts or relied upon by the respondents. The
relevant consideration would be about the quality and nature of
each of these factors and then, the cumulative effect and impact
of all of them upon making of the Will with free agency of the
testatrix. In other words, an individual factor may not be decisive
but, if after taking all the factors together, conscience of the Court
is not satisfied that the Will in question truly represents the last
wish and propositions of the testator, the Will cannot get the
approval of the Court; and, other way round, if on a holistic view
of the matter, the Court feels satisfied that the document
propounded as Will indeed signifies the last free wish and desire
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of the testator and is duly executed in accordance with law, the
Will shall not be disapproved merely for one doubtful
circumstance here or another factor there. [Para 28][422-E-H;
423-A-B]
3. The unexplained unequal distribution of the property is
confounded by two major factors related with making of the Will
in question: one, the active role played by the appellant in the
process; and second, the virtual exclusion of the other children
of testatrix in the process. As noticed, an active or leading part
in making of the Will by the beneficiary thereunder has always
been regarded as a circumstance giving rise to suspicion but,
like any other circumstance, it could well be explained by the
propounder and/or beneficiary. In the present case, it is not in
dispute that out of the three children of testatrix, the appellant
alone was present at the time of execution of the Will in question
on 20.05.2003. As noticed, at the relevant point of time, the
appellant was admittedly living away and in a different locality for
about 20-22 years, whereas testatrix was residing at the ground
floor of the building and the respondent No.1 was at the first
floor. Even if this Court leaves aside the case of the respondent
No.2 who was living in Shimla, there was no reason that in the
normal and ordinary course, the testatrix would not have included
the respondent No.1 in execution of the Will in question,
particularly when she was purportedly making adequate
arrangements towards the welfare of respondent No.1. In other
words, if the Will in question was being made without causing
any prejudice to the respondent No.1, there was no reason to
keep her away from this process. Admittedly, the Will in question
was not divulged for about three years. Therefore, the added
feature surrounding the execution of the Will had been of
unexplained exclusion of the respondent No.1 from the process.
[Para 29.3][424-G-H; 425-A-D]
4. Apart from the above, active participation of the appellant
in making of the Will in question cannot be left aside as one of
the minor factors for the reason that the appellant indeed
attempted to project a face of innocence by suggesting that the
testatrix did not discuss the Will with her; that she was not aware
as to who drafted the Will and where was it typed; and that she
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came to know about the Will only on 20/21.05.2003. The appellant
even stated that she did not call the witnesses and that the
testatrix herself might have called them. The witness PW-2 has
clearly contradicted the appellant by deposing that on 18.05.2003,
it was the appellant who invited him to her mother's place. Thus,
the appellant, by her conduct of attempting to avoid the fact that
she was aware of making of Will, at least two days before its
execution, has only strengthened the suspicion arising because
of her active participation in execution of the Will while keeping
the other children of the testatrix excluded from the process.
[Para 29.4][425-D-F]
5. Moreover, the handwritten portions carry such formal
and legal expressions like "testament" and "set and subscribed
my hand", which are the tools of the language employed by a
person who is conversant with legal format and requirements for
execution of such a document; and, ordinarily, a layperson like
the testatrix is not expected to be conversant with them. This
set of suspicious circumstances concerning the process of
execution of the document in question reaches to impenetrable
finale by another major part of contradictions in oral evidence.
The appellant asserted in her testimony that the testatrix
discussed the contents of the Will with the attesting witnesses
but both of them (PW-2 and PW-3) consistently maintained that
the contents were not discussed with them. Thus, the appellant
has failed to clear the doubts as to whether what is found written
in the document in question (both by hand and in print) carry and
convey the last wish of the testatrix. [Paras 29.5.3 and 29.5.4][426F-H; 427-A-B]
6. Going yet further, when the core contents of the
document in question are examined, what this Court finds is
another load of several unclear doubts and variety of uncertainties.
As per Section 81 of the Succession Act, if there is an ambiguity
or deficiency on the face of a Will, no extrinsic evidence as to the
intentions of the testator shall be admitted. Thus, everything
related with the true intention of testatrix in the present case is
to be gathered from the contents of the Will in question itself.
[Para 30][427-C]
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7. In the ultimate analysis, this Court is satisfied that the
Will in question is surrounded by various suspicious
circumstances which are material in nature and which have gone
unexplained. The cumulative effect of these suspicious
circumstances is that it cannot be said that the testatrix was aware
of and understood the meaning, purport and effect of the contents
of the Will in question. The appellant, while seeking probate, has
not only failed to remove and clear the aforesaid suspicious
circumstances but has even contributed her own part in lending
more weight to each and every suspicious circumstance. The Will
in question cannot be probated from any standpoint. [Para
31][429-E-F]
8. There remains yet another, and perhaps the most
confounding part of the matter, which leaves nothing to doubt
that the prayer for probate of the Will in question could only be
declined. It is the curious case of alleged third page of the Will in
question and the vacillating stand of the appellant in that regard.
[Para 33][430-A-B]
9. In the impugned judgment, the High Court noticed such
a stand of the appellant, seeking to rely on the very same disputed
third page of the Will and observed that this third page was never
produced by the appellant; rather when the respondent No. 2
sought its production, the appellant denied the same. The High
Court also observed that the said third page of the Will was never
proved before the Trial Court; and even if it was assumed to be
existing, the suspicious circumstances were not dispelled.
[Para 34.2][435-D]
10. Hence, to cap all the suspicious circumstances, the
aforesaid equivocal stand of the appellant, as regards the third
page of the Will and her assertion of having acted in accordance
with the "directions" in the said third page of the Will, effectively
knocks the entire case of the appellant down to the bottom. The
suspicions arising because of the facts and factors noticed
hereinbefore, including the unnatural exclusion of the
respondents from estate; uncertain and rather inexecutable
stipulation about construction by the appellant for the purpose of
the respondent No.1; active role played by the appellant in
execution of the Will and yet seeking to avoid the factum of her
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role by incomplete and vague statements; and the witnesses
having contradicted the appellant on material particulars etc., have
not only gone unexplained but are confounded beyond repair with
such vacillating stand of the appellant regarding the said third
page of the Will of the testatrix. [Para 36][437-A-C]
11. There are enough and cogent reasons to affirm the
material findings of the Trial Court and the High Court that it
cannot be said that the testatrix executed and signed the
document in question as her Will after having understood the
meaning, effect and purport of the contents. [Para 37][437-E-F]
H. Venkatachala Iyengar v. B.N. Thimmajamma AIR
1959 SC 443 : [1959] Suppl. SCR 426; Rani Purnima
Debi v. Kumar Khagendra Narayan Deb [1962] 3 SCR
195; Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors.
(1977) 1 SCC 369 : [1977] 1 SCR 925; Shivakumar &
Ors. v. Sharanabasppa & Ors. C.A.No.6076 of 2009
decided on 24.04.2020 by the Supreme Court of India;
Balraj Taneja and Anr. v. Sunil Madan and Anr. (1999)
8 SCC 396 : [1999] 2 Suppl. SCR 258; Leela Rajagopal
and Ors. v. Kamala Menon Cocharan and Ors. (2014)
15 SCC 570 : [2014] 7 SCR 697 - relied on.
Chiranjilal Shrilal Goanka v. Jasjit Singh (1993) 2 SCC
507 : [1993] 2 SCR 454; Uma Devi Nambiar and Ors.v.
T.C. Sidhan (2004) 2 SCC 321 : [2003] 6 Suppl. SCR
637; Indu Bala Bose v. Manindra Chandra Bose (1982)
1 SCC 20 : [1982] 1 SCR 1188; Surendra Pal v. Dr.
Saraswati Arora (1974) 2 SCC 600 : [1975] 1 SCR
687; Babu Singh and Ors. v. Ram Sahai @ Ram Singh
: AIR 2008 SC 2485 : [2008] 7 SCR 250; Gurdial Kaur
and Ors. v. Kartar Kaur and Ors.: [1998] 2 SCR 486;
P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan
Nambiar and Ors.: AIR 1995 SC 1852 : [1995] 2 SCR
585; Benga Behera and Anr. v. Braja Kisore Nanda
and Ors.: (2007) 9 SCC 728 : [2007] 6 SCR 853; B.
Venkatamuni v. C.J. Ayodhya Ram Singh and Ors.
(2006) 13 SCC 449 : [2006] 7 Suppl. SCR 787; J.
Mathew and Ors. v. Leela Joseph (2007) 5 MLJ 740;
Bachhaj Nahar v. Nilima Mandal and Anr. (2008) 17
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
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SCC 491 : [2008] 14 SCR 621; Madhukar D. Shende
v. Tarabai Aba Shedage (2002) 2 SCC 85 : [2002] 1
SCR 13; Joyce Primrose Prestor v. Vera Marie Vas
(1996) 9 SCC 324 : [1996] 1 Suppl. SCR 268; Ved
Mitra Verma v. Dharam Deo Verma (2014) 15 SCC 578;
Mahesh Kumar v. Vinod Kumar and Ors. (2012) 4 SCC
387; Savithri and Ors. v. Karthyayani Amma and Ors.
(2007) 11 SCC 621 : [2007] 11 SCR 404; Pentakota
Satyanarayana and Ors. v. Pentakota Seetharatnam
and Ors. (2005) 8 SCC 67 : [2005] 3 Suppl. SCR 719;
Padmakar Patil and Ors. v. Rukminibai Vishnu Vekhande
and Ors. (2003) 8 SCC 537 : [2003] 2 Suppl. SCR
583; Rabindra Nath Mukherjee and Anr. v. Panchanan
Banerjee and Ors. (1995) 4 SCC 459; Ramchandra
Rambux v. Champabai and Ors. AIR 1965 SC 354 :
[1964] SCR 814; Ram Piari v. Bhagwant and Ors. AIR
1990 SC 1742 : [1990] 1 SCR 813; Modula India v.
Kamakshya Singh Deo (1988) 4 SCC 619 : [1988] 3
Suppl. SCR 333; B. Venkatamuni v. C.J. Ayodhya Ram
Singh & Ors. (2006) 13 SCC 449 : [2006] 7 Suppl.
SCR 787; Apoline D'Souza v. John D'Souza AIR 2007
SC 2219 : [2007] 6 SCR 1103; Dayananadi v. Rukma
D. Suvarna & Ors. [2012] 1 SCC 510; Shashi Kumar
Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.
AIR 1964 SC 529 - referred to.
Rajesh Chand and Ors. v. Dayawati and Ors. ILR
(1981) 2 Delhi 477; Krishan Dass Gupta v. The State
& Ors 2012 SCC OnLine DEL 977 - referred to.
Case Law Reference
[1993] 2 SCR 454
referred to
Para 15.1
[1959] Suppl. SCR 426
relied on
Para 15.2
[1982] 1 SCR 1188
referred to
Para 15.2
[1975] 1 SCR 687
referred to
Para 15.2
[1962] 3 SCR 195
relied on
Para 17.1
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[1977] 1 SCR 925
relied on
Para 17.1
[2008] 7 SCR 250
referred to
Para 17.1
[1998] 2 SCR 486
referred to
Para 17.1
[1995] 2 SCR 585
referred to
Para 17.1
[2007] 6 SCR 853
referred to
Para 17.1
[2006] 7 Suppl. SCR 787
referred to
Para 17.1
[2008] 14 SCR 621
referred to
Para 18.2
[2002] 1 SCR 132
referred to
Para 18.4
[1996] 1 Suppl. SCR 268
referred to
Para 18.4
[2014] 7 SCR 697
relied on
Para 18.6.2.
(2014) 15 SCC 578
referred to
Para 18.6.2
(2012) 4 SCC 387
referred to
Para 18.6.2
[2007] 11 SCR 404
referred to
Para 18.6.2
[2005] 3 Suppl. SCR 719
referred to
Para 18.6.2
[2003] 6 Suppl. SCR 637
referred to
Para 18.6.2.
[2003] 2 Suppl. SCR 583
referred to
Para 18.6.2
(1995) 4 SCC 459
referred to
Para 18.6.2
[1964] SCR 814
referred to
Para 19.2
[1990] 1 SCR 813
referred to
Para 19.3.3
[1999] 2 Suppl. SCR 258
relied on
Para 20.1
[1988] 3 Suppl. SCR 333
referred to
Para 20.1
[2006] 7 Suppl. SCR 787
referred to
Para 20.4
[2007] 6 SCR 1103
referred to
Para 20.5
(2012) 1 SCC 510
referred to
Para 20.6
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3688
of 2017.
From the Judgment and Order dated 27.06.2014 of the High Court
of Delhi at New Delhi in FAO No. 36 of 2010.
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
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Kamini Jaiswal, Abhimanue Shrestha, Mrs. Rani Mishra and
Jatinerpal Singh, Advs. for the Appellant.
Arjun Harkauli, Prateek Garg, Ms. Aarzoo Khurana, Prosenjeet
Banerjee, Ms. Nidhi Mohan Parashan, Ms. Shreya Singhal, Mr. Pratyaksh
Sharma, Ms. Prachi Dutta and Sarvesh Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
INTRODUCTION WITH BRIEF OUTLINE
1. This appeal by special leave is directed against the judgment
and order dated 27.06.2014 in FAO No. 36 of 2010, whereby the High
Court of Delhi at New Delhi has dismissed the appeal preferred by the
present appellant and has affirmed the judgment and order dated
23.11.2009 as passed by the Additional District Judge, West District, Tis
Hazari Courts, Delhi in Probate Case No. 465 of 2006, resulting in rejection
of the appellant's prayer for grant of probate in relation to the Will dated
20.05.2003, said to have been executed by the mother of the contesting
parties1.
2. The prayer of the appellant for grant of probate in relation to
the Will in question has been declined concurrently by the Trial Court
and by the High Court essentially after finding several unexplained
suspicious circumstances surrounding the Will in question. Being
aggrieved, the petitioner-appellant, who was appointed as the executor
of the Will in question and who was, admittedly, the major beneficiary
thereunder, has preferred this appeal while maintaining that execution of
Will by the testatrix with due compliance of all the requirements of law
has been clearly established on record and there has not been any such
suspicious circumstance which might operate against the genuineness
of the Will in question.
3. Therefore, essentially the point for determination in this appeal
is as to whether the Trial Court and the High Court were justified in
declining to grant probate in relation to the Will dated 20.05.2003 as
prayed for.
1 Hereinafter also referred to as 'the contested Will' or 'the Will in question' or the
'document in question'.
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THE PARTIES AND THE WITNESSES
4. For comprehension of the subject-matter and for effective
determination of the questions raised in this appeal, we may take note of
the principal parties and the witnesses involved in the matter with their
respective roles as infra:
4.1.
The testatrix:
Smt. Amarjeet Mamik wife of Lt. Col. (Rtd.) D. S. Mamik.
Her husband Lt. Col. (Rtd.) D. S. Mamik had expired on
20.10.2002. The testatrix herself expired on 21.05.2006,
leaving behind two daughters and one son, who are the
contesting parties herein.
4.2.
The appellant: Smt. Kavita Kanwar
She is the younger daughter of the testatrix. She is shown
as the executor of the Will in question and she is the major
beneficiary thereunder, though with certain conditions. She
had filed the petition seeking probate that has been declined
by the Trial Court and the High Court.
4.3.
Respondent No. 1: Smt. Pamela Mehta2
She is the elder and widowed daughter of the testatrix. The
conditions stated in the contested Will are purportedly aimed
at making a provision for her residence. Initially, she did not
file the written statement of contest but at the later stage of
proceedings and during the evidence of the appellant, she
attempted to file her written statement. However, the prayer
so made by her was declined by the Trial Court.
Nevertheless, she has continuously contested the matter,
as shall be noticed hereafter.
4.4.
Respondent No. 2: Col. (Rtd.) Prithiviraj Mamik3
2 The respondent No. 1 of the present appeal was on record as respondent No. 2 in the
Trial Court and High Court. Therefore, reference to her in the impugned judgments and
other proceedings shall appear with description as 'respondent No. 2'. However, for
continuity of expressions in this judgment, she is referred to as 'the respondent No. 1'
with contextual clarification wherever required.
3 Similar to FN 2 ibid., the respondent No. 2 of the present appeal was on record as
respondent No. 3 in the Trial Court and High Court. Therefore, in the impugned
judgments and other proceedings he is described as 'respondent No. 3'. However, for
continuity of expressions in this judgment, he is referred to as 'the respondent No. 2'
with contextual clarification wherever required.
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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He is the son of the testatrix. By way of bequeath in the
Will in question, he has been given 'credit balance' lying in
the bank accounts of the testatrix but with clarification that
he shall not inherit any portion of the immovable assets of
testatrix. He had filed the written statement and has
consistently contested the claim for probate of the Will in
question.
4.5.
The attesting witnesses:
PW-2: Shri. Urvinder Singh Kohli, who is said to be a friend
of the appellant and his daughter got married to the son of
a cousin of the appellant; and PW-3: Major General Manjit
Ahluwalia, who is son of the sister of testatrix.
THE IMMOVABLE PROPERTY INVOLVED: ANNALS
AND DESCRIPTION
5. We may also notice at the outset that the immovable property,
a part whereof forms the subject of bequeath and which is the major
bone of contention in this case, has its own chronicle of different transfers
as per the desire of its original owner, father of the contesting parties.
For comprehension of the relevant factual aspects as also salient features
of this case, it is equally necessary to take note of the description of
immovable property in question as also the past dealings in relation thereto.
5.1. The property in question is identified as bearing number
D-179, Defence Colony, New Delhi admeasuring 325 square yards and
comprising of a building having ground floor, first floor, terrace and annexe
block of garage and servant quarter. The whole property originally
belonged to Lt. Col. (Rtd.) D. S. Mamik, father of the contesting parties
who, in his lifetime, gifted the ground floor of this property to the appellant
by way of a registered Gift Deed dated 25.01.2001; and thereafter, he
bequeathed the remaining portion/s, that is, the first floor, terrace and
the annexe block of garage and servant quarter in favour of his wife
Smt. Amarjeet Mamik through a registered Will dated 14.02.2001. Lt.
Col. (Rtd.) D. S. Mamik expired on 20.10.2002. Hence, after his demise,
Smt. Amarjeet Mamik, mother of the contesting parties, became owner
of the first floor and other portions of the said property except the ground
floor.
5.2. It is also noteworthy that at the time of execution of the
contested Will dated 20.05.2003, the testatrix Smt. Amarjeet Mamik was
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residing at the ground floor of this property (which had otherwise been
gifted to the appellant by her father). The first floor of this property
(which had otherwise been bequeathed to the testatrix by her husband)
has remained in occupation of respondent No. 1, the widowed daughter
of the testatrix.
THE WILL IN QUESTION
6. The contested Will dated 20.05.2003 has been placed on record
as Ex. PW1/H. A vast variety of features related with this Will form the
subject of dispute in this case. The Trial Court and the High Court have
also analysed and taken into account several of the suspicious
circumstances surrounding this Will and the long length of arguments of
the learned counsel for the contesting parties in this appeal have also
revolved around this Will. Having regard to the questions involved, it
would be apposite to take note of the features and attributes of the
contested Will to appreciate the stand of the contesting parties as also
the findings in the impugned judgments.
6.1. The contested Will is drawn up in two pages. It is a partly
holograph document in the manner that its opening and concluding
passages/clauses are handwritten whereas the other paragraphs/clauses
are of electronic print. This Will is said to have been executed on
20.05.2003 by Smt. Amarjeet Mamik while residing on the ground floor
of the property in question at D-179, Defence Colony, New Delhi in the
presence of the attesting witnesses and the appellant.
7. The Will in question reads as under: -
"WILL
I Amarjit Mamik aged 77 years w/o Lt. Col. (Retd) D.S.
MAMIK r/o Ground floor D. 179, Defence Colony New Dlhi
- 110024 c/o hereby make This my will and testament on
This 20 day of May 2003 at New Delhi.
1. WHEREAS I was married to Lt. Col. (Rtd.) D.S. Mamik from
which union the following children were born:
1. Mrs. Pamela Mehta
- Daughter, aged 60 years
2. Col. (Rtd.) Prithivijit Mamik - Son, aged 57 years
3. Mrs. Kavita Kanwar
- Daughter, aged 50 years
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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2. AND WHEREAS my said husband was the owner of the said
building bearing No. D-179, Defence Colony, New Delhi -
110024, constructed on a plot of land admeasuring 325 sq. yds.
and comprising of a ground floor, first floor, terrace thereon
and the annexe block of garage and servant quarters thereon.
3. AND WHEREAS during his life time my said husband had
executed a duly registered Gift Deed dated 25.1.2001 in respect
of the ground floor of the said building in favour of my
aforementioned youngest daughter Mrs. Kavita Kanwar who
has after the execution of the said Gift Deed granted a licence
to use the same floor for my residential purposes out of natural
love and affection.
4. AND WHEREAS my said husband has vide Will dated
14.2.2001, validly executed and duly registered, bequeathed to
me the first floor, the terrace thereon and all other portions of
the said building, hereinafter referred to as the property, save
and except the said ground floor of the same building.
I am in my full senses and disposing mind and I fully understand
what is right and wrong. I am on my own accord voluntary, without
any force, pressure, coercion or influence of any kind am making
this Will in order to direct as to the manner of the inheritance of
my aforementioned assets upon my demise. I hereby and
hereunder revoke any wills or codicils that I may have made in
the past.
1.
I hereby give, devise and bequeath to my youngest daughter
the said Mrs. Kavita Kanwar my entire share in the
aforementioned immovable property, namely the first floor
and the terrace including all other portions, save and except
the ground floor with specific directions that my said daughter
Mrs. Kavita Kanwar will carry out either of the 2 options as
deemed proper by her, namely
(a) construct on the terrace of the said building such residential
facility of such covered area as is permissible under the
Municipal Building Bye-laws at the time of my demise and
hand over possession of the same construction to my elder
daughter, namely Mrs. Pamela Mehta, who shall thereafter
acquire sole exclusive title to the said portion with the terrace
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rights thereon continuing to vest in favour of the said Mrs.
Kavita Kanwar,
OR
(b) demolish the said building and carry out such new
construction as is permissible under the Municipal Building
Bye-laws and be the sole exclusive owner of the entire building
thus constructed, save and except such constructed residential
portion on the highest floor of such building, which portion
shall vest solely and exclusively in favour of my said elder
daughter Mrs. Pamela Mehta, while the terrace rights thereon
shall continue to vest in favour of my said daughter Mrs.
Kavita Kanwar.
2. I also direct that in the event of my acquiring any further movable
or immovable assets hereinafter or any other assets that I may
have forgotten to mention in the present Will the same shall devolve
upon my daughter Mrs. Kavita Kanwar.
3. I hereby give, devise and bequeath to my son, Col. Prithivijit
Mamik, the credit balance lying in my Bank Accounts. I however,
clarify that my said son shall not inherit any portion of my
aforementioned immovable assets.
4. I hereby appoint my said daughter Mrs. Kavita Kanwar as the
Executor of my Will.
In witness whereof, I Amarjit Mamik have set and subscribed
my hand to this my last will as also to each of the 2 pages that
comprise it having understood the contents thereof and
endorsing thereby and giving my approval to the bequest made
therein.
I fully endorse the manner in which my assets shall devolve
as stated hereinabove in my will made out in 2 pages. Each
of which page has been signed by me.
Amarjeet Mamik
Testator
Signed by the Testator in the presence of
the witnesses and the witnesses have
 (Sd/-)
signed in the presence of the Testator
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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Witness No. 1:
(Sd/-)
Maj Gen Manjit Ahluwalia
D-34 Defence Colony
20 May 2003
Witness No. 2:
(Sd/-)
(Sd/-) 20/5/03 Urvinder S. Kohli
 S/o S. Navinder S. Kohli
 227 Jor Bagh N. Delhi"
(Note: The bold italicised portions are in the handwriting of the
testatrix whereas unbold italicised portions are in the handwriting
of the respective witnesses. All other contents are of electronic
print)
SUMMARY OF PLEADINGS, ISSUES AND EVIDENCE
AS ALSO THE RELEVANT PART OF PROCEEDINGS IN THE
TRIAL COURT
8. Having taken note of the particulars of the parties and the
property involved as also the contents of the Will in question, we may
now summarise the pleadings of the parties, the issues framed by the
Trial Court, the material aspects of evidence led by the parties and the
relevant part of the proceedings in the Trial Court, which have bearing
on the questions involved herein.
8.1. Briefly put, the petition leading to this appeal was filed by the
appellant on 06.11.2006 in the Court of District Judge at Delhi under
Section 276 of the Indian Succession Act, 19254 for grant of probate of
the Will in question, said to have been executed by her mother Smt.
Amarjeet Mamik while arraying the State (N.C.T., Delhi) as the party
respondent. Thereafter, by filing amended memo of parties, the present
respondent Nos. 1 and 2 were arrayed as respondent Nos. 2 and 3
respectively. The appellant stated the facts relating to the children of the
testatrix as also the said gift of the ground floor made by the father in
her favour and then, asserted in the petition that by the Will in question,
the testatrix had bequeathed the first floor and other portions except the
ground floor of the said property at No. D-179, Defence Colony, New
Delhi in her favour with directions to carry out one of the two options,
i.e., either to construct on the terrace of the first floor of the said property
4 Hereinafter also referred to as 'the Succession Act'.
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or to demolish the said building and to re-construct and give the highest
floor of the said building to Mrs. Pamela Mehta (other daughter of
testatrix) while retaining the terrace rights thereon; and had bequeathed
the balance in her savings bank account maintained with Central Bank
of India in favour of her son Col. (Rtd.) Prithivijit Mamik. While stating
that the Will in question was duly executed in the presence of the aforesaid
two witnesses and that the testatrix expired on 21.05.2006, the appellant
asserted that she was the executor and beneficiary of the Will in question
and was entitled to seek its probate.
8.2. For their relevance, we may usefully take note of the material
contents of the said petition as also those of Schedule A and Schedule B
attached to the petition, giving out respectively the particulars of the
natural heirs of the deceased Smt. Amarjeet Mamik and a list of assets
of the deceased as under:-
" ***
***
***
4.
That the "WILL" dated 20.05.2003 was duly executed by
Smt. Amarjeet Mamik in the presence of two witnesses
namely Major Gen. Manjit Ahluwalia r/o D-34, Defence
Colony, New Delhi and Sh. Urvinder S.Kohli s/o S.Narinder
S.Kohli r/o 227 Jor Bagh, New Delhi-110003.
5.
That the deceased was the owner of first floor, the terrace
thereon and all other portions of premises no. D-179, Defence
Colony, New Delhi-110024, save and except the ground floor
of the said building, as mentioned in the will and the said
property, is likely to come to the hands of the petitioner and
her sister namely Mrs. Pamela Mehta as per the "WILL".
6.
That the husband of the deceased was the owner of property
bearing no. D-179, Defence Colony, New Delhi-110024
constructed on a plot of land measuring 325 square yards
and comprising of a ground floor, first floor, terrace thereon
and an annexe block of garage and servant quarters thereon.
7.
That during his lifetime the husband of the deceased had
executed a duly registered gift deed dated 25.01.2001 in
respect of the ground floor of the said building in favour of
his youngest daughter i.e. Smt. Kavita Kanwar.
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
[DINESH MAHESHWARI, J.]
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8.
That the husband of the deceased vide 'Registered Will' dated
14.02.2001 bequeathed to the deceased the first floor, the
terrace thereon and all other portions of the said building to
the deceased, save and except the ground floor.
9.
That Smt. Amarjeet Mamik died on 21.05.2006 at Delhi within
the jurisdiction of this Court.
10. That the deceased Smt. Amarjeet Mamik was a Hindu by
religion and she left behind, besides the petitioner the following
relatives/legal heirs :
(i) Mrs. Pamela Mehta
Daughter
(ii) Col. (Rtd.) Prithvijit Mamik
Son
The complete addresses of the above heirs are given in the
annexures marked as schedule 'A' attached with this petition.
Except the above legal representatives there is no legal heir
of the first class as mentioned in the Hindu Succession Act.
11. That the petitioner is one of the beneficiaries of the "WILL"
dated 20.05.2003 and the petitioner is also the executor of
the said "WILL". The immoveable property which is likely
to come to the hands of the petitioner is having the worth of
about Rs. 18 Lakhs.
12. That the assets which are likely to come in the hands of the
petitioner are the first floor and other portions of the property
no. D-179, Defence Colony, New Delhi-110024 save and
except the ground floor of the building and to carry out the
two options of constructing either on the terrace of the first
floor of the said building or to demolish the said building and
to re-construct and give highest floor of the said building to
Mrs. Pamela Mehta and retaining the terrace rights there on.
13. That the balance in the Savings Bank account No. 1001020597
maintained with the Central Bank of India, Defence Colony,
New Delhi as mentioned in the Schedule-B attached to the
petition will go to Col. (Rtd.) Prithivijit Mamik and the petitioner
does not claim the same.
***
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SCHEDULE A
Name and Addresses of the L.Rs of the deceased Smt.
Amarjeet Mamik
S. No.
 Name
Relationship
Address
1. Mrs. Pamela Mehta
Daughter
D-179,Defence
Colony, New
Delhi-110024.
2. Co. (Rtd.) Prithvijit
Son
Madhuban Gian
 Mamik
Vatika, Khalini,
Shimla(H.P.)
3. Mrs. Kavita Kanwar
Daughter
S-45, Panchshila
Park, New
Delhi-3
***
***
***
SCHEDULE B
IMMOVEABLE PROPERTY:
First floor, the terrace thereon and all other portions of premises
no. D-179, Defence Colony, New Delhi-110024, save and except
the ground floor of the said building.
MOVEABLE ASSETS:
1.
Balance in Savings Account No. 1001020597
maintained with Central Bank of India,
Defence Colony, New Delhi.
 Rs. 577389.00"
***
***
***"
9. The said petition seeking probate was eventually transferred to
the Court of Additional District Judge, Delhi for consideration. After
requisite publication and due notice, the respondents put in appearance
but, on 18.04.2007, it was given out on behalf of the present respondent
No. 1 that she did not wish to file objections to the petition. However, the
objections with documents were indeed filed on behalf of the present
respondent No. 2, who refuted the claim of the appellant and contended,
inter alia, that the Will in question was forged and fabricated, where the
KAVITA KANWAR v. MRS. PAMELA MEHTA & ORS.
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appellant was the major beneficiary as also the executor; that there was
no reason for exclusion of the respondents and grandchildren from the
legacy; and that the property in question being an ancestral property,
belongs to all the legal heirs of late Shri D.S. Mamik. The replying
respondent maintained that there existed no dispute between testatrix
and himself and there was no reason for the mother to have excluded
him from the Will. He also contended that the property bequeathed in
favour of the appellant was worth crores of rupees and hence, it was
impossible to comprehend that his mother had left him merely a sum of
Rs. 5,77,389/- when the relations between him and his mother were
cordial.
10.