The non-mention of the gift deed and a contrary bequest in the Will makes the Will suspect.

The High Court of Delhi held that all the circumstances such as, long gap of time, the non-mentioning of the gift deed, the non-production of an official from the Sub-Registrar’s Office, non-familiarity of the testator with English language, the absence of essential facts narrated in the Will and the absence of credibility of the attesting witness, goes to show that the Will was executed under suspicious circumstances.

The said ratio was delivered by the High Court of Delhi the matter of Ashok Arora Vs. Pramod Arora, RFA 467/2016 decided on 11.07.2018.

Challenge

In the present appeal, the submission of the Plaintiff/ Appellant was that the Will is clear in its bequest and there exists no suspicious circumstances, as held by the Trial Court.

Testator/ Father was the owner of two properties bearing no. A-173, Gujranwala town, Delhi (hereinafter “residential house”) and a shop at plot no.11, Meerdard Road, Gandhi Marg, New Delhi 110002 (hereinafter ‘shop”).

The case of the Plaintiff was that as per the Will dated 4.12.1992, the testator/ father had bequeathed the Ground Floor of the residential house and the shop, in favour of the Defendant, whereas the First Floor and the right to raise construction thereupon was bequeathed in favour of the Plaintiff

Whereas, the case of the defendant was that the testator/ father has already executed the gift deed dated 29.09.1984 by which the entire shop was gifted to the Defendant. The defendant further alleged that the testator was not in a sound mind at the time of making the Will as the gift deed was already executed with respect to the said subject property and later admitted by the Plaintiff.

The limited issue for adjudication before the High Court of Delhi was whether the said Will dated 04.12.1992 is genuine or not under Section 63 of the Indian Succession Act 1925.

Held

Upholding the rationale given by the trial court, the High Court of Delhi observed that in the Will dated 04.12.1992, there is no reference to the gift deed dated 29.09.1984, which is an admitted document and has not been disputed by the Plaintiff/ Appellant. By the said gift deed, the entire property where the subject property was located was gifted to the Defendant. After the perusal of the gift deed, the Hon’ble court held that it is not possible for a person of sound mind who has unconditionally gifted a property to one of his sons to again make a bequest in a different manner, in a Will executed 8 years later, that too without making a mention of the gift deed in the Will. The non-mention of the admitted gift deed in the Will is a major circumstance which reflects upon the testator’s lack of decision making.

After placing the reliance Rani Purnima Debi & Anr. v. Kumar Khagedndra Narayan Deb & Anr. AIR 1962 SC 567 and Mahesh Kumar v. Vinod Kumar (2012) 4 SCC 387, the High Court of Delhi further held that the lack of knowledge of the Will, by any of the daughters and the son i.e. the Defendant with whom the testator lived right till the end, further raises questions as to the genuinity of the Will.