RAJASTHAN HIGH COURT

                Surendra Bhatia

                Vs.

                Punam Bhatia

Civil Misc. Appeal No.245 of 2000 and Civil Misc. Appeal No. (Defect) 219 of 2000
                                          (J.C. Verma, J.)

                26.04.2001

                JUDGEMENT

J.C. Verma, J.

1. S. B. Civil Misc. Appeal No.245/2000 has been filed against the judgment and
decree dated 6-12-1999 passed by the District Judge, Jaipur city, Jaipur by Surendra
Bhatia - defendant. In the suit filed by Smt. Poonam Bhatia by which decree he had
allowed the application of the respondent plaintiff of grant of succession certificate;
whereas Appeal No. (defect) 219/2000 is also directed against the same judgment and
decree dated 6-12-1999 by Smt. Swarn Anand D/o Shri Chunni Lal Bhatia who was
one of the defendant in the suit filed by Smt. Poonam.

2. The respondent-plaintiff Smt. Poonam Bhatia w/o Late Sudershan Bhatia and
Kumari Smita Bhatia D/o Late Sudershan Bhatia R/o 7, Pradhan Marg, Malviya
Nagar, Jaipur had filed a suit for succession certificate against Surendra Bhatia, Smt.
Swam Anand sons and daughters of Shri Chunni Lal Bhatia and Kumari Smita Bhatia
wife of Shri K.B. Bhatia.

3. Suit was filed under Section 372 of the Indian Succession Act, 1925 stating therein
in the application that the deceased Sudershan Bhatia, husband of Smt. Poonam
Bhatia and father of Kumari Smita Bhatia had property at Jaipur and Delhi. The
deceased Sudershan Bhatia died on 21-4-1989 in Frankfurt, Germany and being sole
heirs, they had claimed the succession certificate about the assets and liability of the
deceased. The application was resisted by the defendants, now the appellant i.e.
brother and sister of the deceased. The claim was being resisted on the basis of Will
dated 17-4-1989 (Ex. A-1) purported to have been executed by Sudershan Bhatia, with
further submissions that the relations between the deceased and Smt. Poonam Bhatia
were strained and, therefore, Sudershan Bhatia did not want to give any property to
Smt. Poonam Bhatia. The Will is said to have been executed by the deceased
Sudershan Bhatia in the hospital of Frankfurt in Germany. The following issues were
framed;

       (1) Whether the deceased had executed any Will and because of the Will the
       applicants are not entitled to succession certificate; (2) whether the will was
       legal and effective; (3) whether the probate is necessary and whether 'Will' was
       to be attested according to Germany law or it is otherwise illegal.

4. The trial Court had decided issue Nos.1 and 2 in favour of the applicant and against
the defendant-appellants and the remaining issues against the defendants holding that
Will was not validly executed and was written in the suspicious circumstance.
5. The appellant states that the order of the trial Court in not believing the 'Will' was
erroneous. It is also submitted that the plaintiff Smt. Poonam Bhatia was, perhaps, not
legally married to Sudershan Bhatia and reliance is placed for this purpose on Ex.15
i.e. the passport of the plaintiff where her name has been entered as Smt. Poonam
Kapur wife of Priyaveer Kapur of New Delhi and also the ticket for journey from
Delhi to Frankfurt on 2-11-1987 when she had accompanied late Sudershan Bhatia. In
the statement given in the Court, plaintiff had stated that the marriage had taken place
on 25-12-1985; it is contended that in case the marriage had taken place on 25-12-
1985, then in such situation, the plaintiff could not have identified herself to be Mrs.
Poonam Kapur in the passport.

6. The next submission made by the counsel is that the averments in the application
under Section 372 had not been proved. It is also submitted that even though Will was
produced by the present appellant; the onus should have been put on the plaintiff to
prove that she was entitled to succession certificate. It is further submitted that the
Will has been properly proved by the statement by DWs attesting witnesses with Mrs.
Brigitti Rose Morsi Gorki and DW-3 Dr. Ure Faber and in such circumstances there
was no reason for the trial Court for not believing the Will. It is stated that if the Will
is believed, in that situation Late Sudershan Bhatia had expressely debarred the
plaintiff to inherit any property and he had bestowed the property on the beneficiaries
of the Will.
7. The trial Court had doubted the Will on number of counts; (1) how Surendra - .
appellant was able to get the possession of the Will; (2) if Sudershan Bhatia was in the
hospital at the time of writing of Will, it was dictated to whom and where was the
original draft; (3) the Will written on the half page itself could have been written in
hand or typing; (4) there is no attesting witnesses of the doctor or the Nurse of the
hospital; (5) no record has been placed of physical or mental condition of the
deceased; (6) there is no record about the presence of the attesting witnesses in the
hospital ever produced; (7) despite the fact that the Will had mentioned maintenance
of minor daughter Kumari Smita Bhatia of Sudershan Bhatia, but how no action was
taken by the defendants to make arrangements for the education of such daughter; (8)
who had got it laminated; (9) in the earlier suit filed between the parties on 17-7-1989,
no mention had been made of any Will; (10) Ex.1/1 a document filled at the time of
cremation in Germany, contains the entry that the deceased was unmarried; (11) Kapil
Bhatia was not produced; (12) no details have been given about other properties; (13)
the testator himself had written that he is going to die very soon but the attesting
witnesses state that he was in healthy body and mind; (14) DW-2 Mrs. Goerke had
declined to sign her statement; etc. etc.

8. Above are some of the suspicious circumstances of which the trial Court had made
a mention.

9. Counsel for the appellant challenges the finding with the prayer that the judgment
of the trial Court be set aside.

10. The other appeal CMA No.219/2000 (Defect) has been filed by Smt. Swarn
Anand, sister of the deceased, on the ground that the property in question was
ancestral and she as a sister was entitled for 1/4th share of the property under Indian
Succession Act.

11. In the plaint, it has been averred that the deceased Sudershan Bhatia was doing the
business of export of Carpets in Jaipur in the name of the firm Jaipur in the matter of
Oriental Tapis Pvt. Ltd., Amer Road. He and the plaintiff No.1 was the Director and
was holding the majority shares. It was further mentioned that the deceased had self-
acquired movable and immovable properties in Jaipur and Delhi for which succession
certificate was being applied for. Defendant No.1 appellant had replied that the
plaintiff Smt. Poonam Bhatia was the Managing Director of the said company, but had
resigned on 1-12-1988. It is stated in the written statement that Sudershan Bhatia was
not well and he had gone to Frankfurt for check-up in March 1989. He died in the
hospital and despite the fact that the plaintiff had come to know of, the death on 22-4-
1989, she had not visited Germany. It was admitted that Kumari Samita was the
daughter of the deceased and Poonam Bhatia. In the written statement filed, it was
nowhere denied that the plaintiff was not the legally wedded wife, rather what was
pleaded was that the plaintiff was having strained relations with her husband
Sudershan. It was further pleaded in the written statement that a Will was executed on
17-4-1989 in the hospital itself and half of the property was given to defendant No.1,
the present appellant and the remaining half to her minor daughter and the defendant
No.1 was said to have been appointed as trustee of the minor daughter till she attained
the age of 21 years. It was specifically admitted in the heading of additional details
that Smt. Poonam Bhatia was a divorced lady married to Sudershan Bhatia on 25-12-
1985. It was further pleaded that Smt. Poonam Bhatia had one daughter and one son
from the wedlock of her earlier husband who are staying with Smt. Poonam Bhatia i.e.
a specific admission had been made to the effect that the plaintiff Smt. Poonam Bhatia
was a legally married wife after having been divorced from her earlier husband.

(Emphasis by Court)

12. The succession certificate was claimed in regard to the amount lying in the banks.
State Bank of India, Jaipur, New Delhi, Bank of India, Hong Kong and Shanghai
Banking Corporation, New Delhi. M/s. Jaipur Oriental Tapis Pvt. Ltd. equity shares,
share certificates lying in the name of Sudershan Bhatia, details of which had been
attached with the suit.

13. Smt. Poonam Bhatia, the plaintiff had appeared as PW-1. She had stated that she
had married to Sudershan Bhatia on 25-12-1985 according to Hindu rites and one
daughter Samita Bhatia was born out of the wedlock. She has stated that she and her
husband had started a company named Jaipur Oriental Tapis Pvt. Ltd. and she was the
Managing Director of the same and her husband was the Director. They were having
the majority shares. Her husband was owning movable and immovable properties in
Jaipur, Delhi and in Germany. She has stated that the property mentioned for the
purpose of probate and succession certificate belonged to her husband and no one
including Surendra Bhatia or Swarn Anand or Samita Bhatia had any share in the
property. Her husband had died on 21-4-1989 at Frankfurt. He was suffering from
Endocarditis. She had even doubted the signatures on the alleged Will as produced by
the defendant. She has stated that the defendant Surendra and her husband were not
having any cordial relations as Surendra Bhatia was not happy of her marriage with
his brother. She had visited Germany when her husband had gone there for operation
in November 1987 and both had come back. Her husband had come back to India on
23-1-1988. He was again admitted at Escorts Hospital. He went to Germany for
treatment. She could not accompany because of her infant daughter as was so desired
by her husband. She has stated that she had been talking on telephone to her husband
in Germany but she was not told of any Will having written by him. She specifically
denied that the Will had been signed by her husband and signatures do not tally. She
states that on getting the information of the death of her husband, the defendant
Surendra Bhatia after consulting her immediately proceeded to Germany for bringing
the dead-body, but without her permission he cremated him there in Germany. The
ceremony of Uthawana was done at Jaipur at her residence on 29-4-1989. Even at that
time she was Managing Director of the company. She had produced a voter's list
showing her name and the name of her husband and one of his servant as resident of
Jaipur. She has stated that her husband was divorcee of his earlier marriage vide Ex.9.
She has also stated that the defendant Surendra Bhatia had forged signatures of her
husband on certain document and a suit in this regard is also pending in Delhi in Tees
Hazari Court. She has stated that she is in possession of the passport in the name of
Smt. Poonam Kapur which was issued to her prior to the marriage to Sudershan Bhatia
and when her earlier marriage with Shri Kapur was existing. She has not got the name
changed in the pass-port. Even though her mother was Muslim in the year 1940, but
after 1940 she had adopted Hinduism after her marriage. She has admitted that she
had two children from her earlier husband Shri V.P. Kapur, who are now living with
her. Even the expenses for education of these two children were being borne by her
husband Sudershan Bhatia. He had no objection of staying of the children with them.
After the marriage, her husband Sudershan Bhatia had purchased number of plots in
her name in Durgapura. Mahar House Malviya Nagar and she was nominee in the
insurance of her husband as well. She has even got the insurance money of her
husband as nominee. She stated that earlier she was getting maintenance from her
earlier husband. In the cross-examination, she says that Sudershan Bhatia, her
husband, used to live in India for six months and for the remaining six months he used
to live in Germany. She had visited Germany in 1986-87 with her husband and stayed
with her husband. Sudershan Bhatia was owning his own house at Frankfurt. She had
become the Managing Director of the company on 4-9-1987 in the presence of her
husband. She admits that she had lived with Swarn Anand immediately after marriage
for about few days, but later on had shifted to their own house.

14. PW-2 K.P. Gupta, has been produced who is a Branch Manager of DAB, LIC,
Jaipur and had depose about the insurance of Sudershan Bhatia. He stated that the
insurance money of one policy has been already disbursed to the plaintiff Smt.
Poonam Bhatia, but about the second policy the dispute has been raised.

15. PW-4 is Mrs. R.K. Vij, hand-writing expert who stated that she has compared the
signature of the testator on the Will with the admitted signatures of the writer of the
years 1986,1987 and 1988 and according to her conclusion, the signatures on the Will
differ from the original/admitted signatures. She had given her report as Ex. PW-4/1.

16. Surendra Bhatia has appeared as DW-1. He had exhibited the Will and stated
about the illness and death of his brother Sudershan Bhatia in Germany. He says that
he was told on 21 -4-1989 itself by one Rahul Bhatia about the death of his brother
and he left for Germany on the next day; he had cremated his brother in Germany and
had brought the ashes in India and had gone to Hardwar. He had come back to India
on 29-4-1989. 'Pagri ceremony' was done. He admits that the marriage with Smt.
Poonam Bhatia was solemnized in December 1985. He further admits that Smt.
Poonam Bhatia was divorced wife of V.P. Kapur. He states that he himself is
unmarried, but Sudershan Bhatia used to live with him and that he was doing a Joint
business with Sudershan Bhatia. Smt. Poonam Bhatia was told about the death on 22-
4-1989. He admits that in the year 1987 Sudershan had gone to Frankfurt and was
operated upon for by pass surgery. Smt. Poonam Bhatia had also accompanied him,
but had come back after about two Weeks to look after the children. He has stated that
the relations between Smt. Poonam Bhatia and Sudershan Bhatia were strained. He
also admits that his brother Sudershan Bhatia was earlier married to one Anita and
both were divorced by mutual consent. He also says that he does not know whether
Sudershan was writing to Poonam Bhatia or not, but so far he is concerned, there was
no much exchange of letters with his brother. Even though he says that he had about
40-50 letters with him, but he cannot produce even one. He also says that he cannot
remember the address of Germany where he had been writing to his brother. He even
does not know the house where his brother was living at Germany or that was itself
acquired or on rent, nor he has even tried to know about it. He has not even tried to
know about some other business or property of his brother in Germany. He says that
before proceeding to Germany on knowing of the death of his brother, he did not
inform any person before leaving for Germany, nor he telephoned to any person
including Smt. Poonam Bhatia. He says before coming to India, he had received the
Will in Germany through Brigetti Goerke on 22-4-1989. He was introduced to such
Goerke for the first time in the hospital. He even does not remember as to where and
when he had opened the envelope containing the Will. He even does not remember
that the envelope containing the Will which was given to him was open or sealed and
who were present at the time when such will was given to him.

17. He admits that in his pass-port his permanent address has been shown as A-43,
Kirti Nagar, New Delhi. He denies the suggestion that he had forged the signatures of
his brother and has withdrawn certain valuables on the basis of the said Will. Of
course, he admits that some criminal cases are pending against him filed by the
plaintiff. He even does not remember the date, month or the year of the death of his
mother or the father. He admits that in the month of March 1989 his brother Sudershan
and Smt. Poonam Bhatia were living together in same house. He admits that he was
arrested for the offence under Section 420 Indian Penal Code on 1-9-1990 and was
released on ball on 4-9-1990. He admits that certain property had been purchased in
the joint name of his brother and the plaintiff. He also admits that Sudershan had
given the guarantee of Rs. 30 lacs for working capital of Smt. Poonam. He also admits
that in 1987 one plot in Mahar House was purchased in the joint name with Poonam
Bhatia. He admits that he was not the Director of the company in the lifetime of his
brother and certain shares were got transferred by him on the basis of his Will.

18. DW-2/1 is Pradeep Bhatia who is a nephew of Sudershan Bhatia. He says that
Sudershan Bhatia was married to Poonam Bhatia. He says that there were strained
relations between Smt. Poonam Bhatia and Sudershan Bhatia, but he does not know
any reason of such conflict. He does not know anything about his self-acquired
property or ancestral property. He states that Sudershan Bhatia was attending to his
work in Jaipur from 1986 right up to February 1989. He identified the signatures of
Sudershan Bhatia on the Will on the ground that he had seen him signing. He was only
a Supervisor/employee in the company of Sudershan Bhatia. He admits that he was a
surety in a ball bond in favour of Surendra Bhatia, the defendant. He admits that at the
time of surgery of Sudershan Bhatia in Germany, his wife had accompanied him. He
admits the signatures on Exs.26, 27 and 28. Smt. Poonam Bhatia was the Managing
Director of the Company run by Sudershan Bhatia.

19. DW-2/2 is Alok Anand who is maternal grand father and states that he had
property in Delhi and Punjab and after his death in the year 1978 the property was
sold. He says that certain property was purchased by Sudershan in the year 1987 and
also some property was purchased in Jaipur and the remaining property of Sudershan
Bhatia was in Germany. The 'Uthawana' was done at the house of Sudershan at Jaipur.
He says that he had no knowledge that Sudershan had filed any suit against his
company Vandana International Firm in which he has a partner for liquidation and for
recovery of amount in Delhi High Court. He also shows ignorance whether he was a
party to such litigation in Delhi or not. However, he admits that he was living in the
house of Sudershan in Delhi and that the house was sold by Sudershan Bhatia; he was
evicted, his lugguage was removed from the house. He is son of Smt. Swarn Anand.
He says that he was told about the Will, but he had not cared to either read the Will or
see the Will or even does not know as to in which language the will had been written.

20. DW-2/3 is Sumendra Anand. He is also nephew of Sudershan. He admits the
marriage with Poonam Bhatia. He says that Sudershan had acquired certain property,
one farm house in Delhi, Mahar House in Jaipur in Malviya Nagar in the name of
Poonam Bhatia, his wife. In addition he had certain other properties also. He says that
after the "Pagri Rasm' Sumendra had told the people sitting in the Rasm about the Will
and also had shown the Will. The Will was on a simple paper and was not laminated.
He had identified the signatures of the testator. He admits that there were certain
litigations between the parties through him against Sudershan. He also has no
knowledge if any suit was filed by Sudershan against Vandana International in which
he was Manager of such firm. He has no knowledge even that suit was decreed. He
says that Surendra, the plaintiff, was living in Canada for 20-25 years, but he has no
knowledge when he had come to India. He identifies Sudershan and Poonam Bhatia in
photographs Ex.32.

21. DW-4 Ramesh Kumar Thakur is Hand-writing expert. He has compared the
signatures of the testator on the Will with the passport and says that the Will had been
signed by the person who had signed on the pass-port i.e. Sudershan. Certain variation
and discrepancies had been pointed out to him on comparison of the two signatures,
but states that these are the natural variations.
22. In addition to above, statement of Mrs. Brigitte Rosmorce Goerke, aged 59 years
was recorded in Germany on Commission. She had declined to swear in the name of
God. She says that she had seen Sudershan Bhatia on the day of death i.e. 21-4-1989.
She says Mr. Bhatia had presented to her a document on 17-4- 1989 and to a question
whether she remembers as to what was the document, she says that she can answer
only after seeing the text of the document and it appeared that AW-1 was the same
document. She says that Dr. Fehr was also present when she had signed the document.
She says that Mr. Bhatia was normal in health on that day. The document was
presented to her as it is and Dr. Fehr also signed before her. She says that the
document was not handed over to her for safe custody nor she had taken this
document. She says that she did not know Bhatia before signing this document nor did
she know Surendra. In the cross-examination, she had stated that Sudershan had gone
into Coma in the afternoon on 20-4-1989. She says that she was keeping the diary
about the illness and death, but had not mentioned anything about coma, but no diary
was produced. She says that Mr. Bhatia had become seriously ill on 20-4-1989, he was
in the intensive care. She must have met Mr. Bhatia 12 times before his death. When
on 17-4-1989 she had gone to Bhatia, no one else was present, not even the doctor or
nurse. She says that the Will was already in his hand. She does not know to whom Mr.
Bhatia had dictated the Will and who had typed the Will. She does not know as to
what Dr. Fehr was doing for his living i.e. other witness, but she says that he was not a
medical practitioner and that she had seen Dr. Fehr for the first time. She says that she
was known to Sudershan since 1976 when they had met at a flight, but denies any
other relations. She also had met the first wife Anita many times. She says that she
had met plaintiff Surendra before 5-6-times.

23. Dr. Ury Fehr was also examined on Commission, who says that the document Ex.
A-1 was signed in his presence in the hospital. He says that Sudershan was in good
health at the time though he was ill. He says that he is having business relations with
Rupil Bhatia and he had been visiting Sudershan Apartments several times with Rupil,
which apartment was owned by Sudershan. He says that Sudershan was owning one or
two cars. He does not know as to who had typed the Will or to whom it was dictated.
He had gone only to sign the document. He says that Sudershan had underwent a
surgery immediately after 17-4-1989. He says that on the next day of death of
Sudershan, he had met Surendra, Rupil and his wife and he had picked them from
airport.
24. Document A-1 /1 is the Will bearing the alleged signatures of Sudershan K.
Bhatia, testator, Dr. Ury Fehr and Brigitte Goerke. Ex.1/1 is the death certificate about
Sudershan. It is stated therein that he was not married. Ex.2/1 is the certificate by the
Mayor stating that Sudershan was a Canadian citizen and had died on 21-4-1989 and
family members were residing at D-129, Basant Marg, Bani Park Jaipur.

25. Ex. A is the reply filed on behalf of Surendra Bhatia, defendant appellant to the
interim injunction application filed in another suit against Smt. Poonam Bhatia and
others, copy of which application is exhibited as Ex.4, but in the reply filed by said
Surendra Bhatia there was no mention of any Will even though reply was dated 7-7-
1989. In Ex.5 in a criminal case No.313/ 1990, the appellant Surendra Bhatia was
charged u/Sections 380, 467, 420 and 468 Indian Penal Code for discharging certain
bonds.

26. The appellant had not mentioned about any Will in the defence taken against the
charge. Ex.9 is a copy of the judgment of grant of divorce between Sudershan Bhatia
deceased and Anita, his former wife. Ex.16 is the copy of the order in the case filed by
Smt. Poonam Kapur (now the respondent) against her ex-husband Priyaveer Kapur.
Ex.19 is the allotment letter dated 4-9-1986 of plot No. A-128 in the name of
Sudershan Bhatia by New Pink City Grah Nirman Sahkari Samiti Ltd. in Mahaveer
Nagar. Ex.26 is the affidavit of deceased Sudershan Bhatia about leaving of certain
shares in his favour by her mother. Ex.5/29 is a Will of Lajwanti, mother of deceased
Sudershan Bhatia stating therein that 20% share in the form of M/s. Vandana
International Exports shall be transferred absolutely to Surendra Bhatia. It is further
stated in the Will that Sudershan Bhatia had contributed all the capital required for the
purchase of his 20% share in the firm of Vandana International Exports. Exs.34, 35,
37, 38 and 39 are the merit certificates of school of Samita Bhatia, the infant daughter
of Smt. Poonam Bhatia and Sudershan Bhatia. Ex.44 is the payment of the amount to
Smt. Poonam Bhatia as nominee of late Sudershan Bhatia, it is dated 5-10-1989.

27. AW 2/1 is the certified copy of the form No.32 under the Companies Act wherein
there is endorsement against the name of Smt. Poonam Bhatia that she had resigned as
Managing Director of the firm. Ex. AW 4/1 is the report of the expert of the signatures
on the Will showing that the signatures do not tally when compared with the original.
28. Ex. D-4/1 is the report of the handwriting expert produced by the appellant
defendant which shows that the signatures do tally.

29. The following points as argued arise for determination (1) whether Smt. Poonam
Bhatia was married to the deceased and were living as husband and wife in India and
Overseas. The appellant contests the very marriage on the ground that as per Ex.1,
Ex.1/1, the death certificates got issued from Germany, Sudershan Bhatia is said to be
unmarried at the time of death; (2) in the pass-port of Smt. Poonam Bhatia she has
been shown as Smt. Poonam Kapur wife of Shri Priyaveer Kapur and she had been
travelling on the said pass-port and had been making declaration that she is wife of
Priyaveer Kapur for obtaining the documents for travelling; (3) Ex.16 is the order of
the Court in the case of Smt. Poonam Kapur v. Priya Veer Kapur, an application filed
by Smt. Poonam Bhatia against her ex-husband for maintenance on the basis of wife
of Priya Veer Kapur; (4) the air tickets bear the name of Smt. Poonam Kapur.

30. It is argued that the abovesaid circumstances show that Smt. Poonam Bhatia,
respondent was not legally married. No reason has been mentioned as to why Smt.
Poonam Bhatia had not got her name changed from Smt. Poonam Kapur. It is further
submitted that the statement of Poonam Bhatia should not be believed to the effect that
her husband (Former) had got a divorce decree against her in London Court as he was
living in London. It is submitted that in Ex.16 though it has been mentioned that her
previous husband had gone to London, but that cannot be taken as a proof that he was
domicile in London as he was only gone on pleasure trip. The counsel for the
appellant wants to submit that for the reason that there is no cogent evidence to show
that Smt. Poonam Bhatia was ever married legally to Sudershan Bhatia; therefore, she
cannot be treated as a legally wedded wife even though it is admitted that a child was
born out of the wedlock of Smt. Poonam Bhatia and Sudershan Bhatia. The appellant
wants to substantiate this argument also on the ground that the pass-port of Sudershan
who was a Canadian citizen, it was not known that he had visited India during the
period when marriage is said to have taken place and, therefore, on 25-12-1985 it
cannot be said that any marriage could have taken place. It is further stated that
despite the admission made in the pleadings that Smt. Poonam Bhatia had married to
deceased Sudershan Bhatia on 25-12-1985, the appellant is entitled to retract from
such admission and even if admission has been made in regard to marriage of his
brother and Poonam; and that can be disproved despite the admission if the
circumstances so prevail. He wants to submit that for the reason that mother of Smt.
Poonam Bhatia was a 'Muslim' lady in the year 1940 and, therefore, the marriage of
Smt. Poonam with Hindu was itself a void marriage.

31. Alternatively it is submitted that in any case even if Smt. Poonam Bhatia is held to
be legally married, the alleged Will executed by Sudershan Bhatia which is duly
attested by two witnesses is sufficient to dislodge Smt. Poonam Bhatia from the
property and for the reason that the execution of the Will has been properly proved by
both the witnesses, the trial Court ought to have believed the Will.

32. It is further submitted that the Will can also be believed for the reason that the
relations between the husband and wife were strained from the fact that when
Sudershan Bhatia had died on 21-4-1989, she had not immediately gone to Germany
and it was the appellant who had gone to Germany to bring the dead body. It is further
submitted that in the parallel proceedings filed earlier to this suit non-mention of the
Will by the appellant was of no consequence at all because that suit was for
management of the company Jaipur Oriental Tapich Pvt. Ltd. where she was claiming
to be the Managing Director.

33. In the case of Oners and Parties interested in M.V. Vali Pero v, Fernandeo Lopez,
AIR 1989 Supreme Court 2206, it was held that the deposition of the witness recorded
on commission where correctness and authenticity of deposition was not disputed, the
defect of not taking signature is not fatal to reception of deposition in evidence.

34. From the above narrated facts and law, the point to be determined on the evidence
is as to whether Smt. Poonam Bhatia was legally married wife of Sudershan Bhatia
deceased and whether after having been so admitted in the written statement, the
appellant defendant can still dispute the factum of marriage.

35. In the written statement filed by the appellant defendant it is specifically admitted
that the marriage between the parties had taken place. Not only it is admitted in the
pleadings but it has also been stated in the evidence by the plaintiff and even by the
defendant as well. The defendant and defendant's witnesses had categorically admitted
and stated in the evidence that Sudershan Bhatia had married the plaintiff Poonam
Bhatia on 25-12-1985. Even a girl child is also born out of wedlock. The appellant had
tried to take a somersault by moving an amendment application to deny the aspect of
marriage itself which was not allowed by this Court in a Revision Petition
No.343/1999 decided on 26-4-1999. It was held by this Court that the defendant once
having admitted in the written statement cannot be allowed to take the inconsistent
plea which plea is irretrieviably prejudice the case of the plaintiff. The matter stood
finally concluded by the observations of this Court in the abovesaid revision petition.

36. Counsel for the appellant wants to rely that he is entitled to withdraw the
admission made in the pleadings and also in the evidence as per the judgment of
Muhammad Imam All Khan v. Husain Khan,1 where it was held that for the reason and
in the absence of title, if any admission had been made, the party was entitled to
withdraw from such gratuitous admission.

37. In the case of Mam Chand v. Rupa, 2 it was that the admission being based on
erroneous state of affairs could not bind landlord or his successors.

38. In the case of Banarsi Das v. Kanshi Ram, 3 it was held that the admissions made
so on the facts is binding but when it relates to the question of law, such admission
cannot be made binding.

39. In the case of Premchand Hira v. Bal Galal,4 in a divorce case under the Divorce
Act, it was held that the marriage is to be strictly proved. The case has no bearing to
the facts of the present case.

40. The Supreme Court in the case of Modi Spinning and Weaving Mills Co. Ltd. v.
Ladha Ram,5 had held that the parties cannot be allowed to change completely the
case and substitute entirely different and new case and if such amendments are
allowed the opposing party will be irretrievably prejudiced by being denied the
opportunity of extracting the admission from the parties. It was held as under :-

       "It is true that inconsistent pleas can be made in pleadings but the effect of
       substitution of paragraphs 25 and 26 is not making inconsistent and alternative
       pleadings but it is seeking to displace the plaintiff completely from the
       admissions made by the defendants in the written statement. If such
       amendments are allowed the plaintiff will be irretrievably prejudiced by being
       denied the opportunity of extracting the admission from the defendants. The
       High Court rightly rejected the application for amendment and agreed with the
       trial Court."

41. In the case of Heeralal v. Kalyan Mal, 6 where the defendants had admitted 7 out
of 10 properties as joint family property in written statement and contesting only three
properties as exclusively belonging to them. Subsequently seeking amendment of
written statement whereby withdrawing earlier admission made regarding 7 properties,
it was held that such amendment would displace the plaintiffs case and his right to get
preliminary partition. Amendment was not permissible.

42. Reliance is also placed on a Surendra Bhatia v. Poonam Bhatia 7 in this very suit
where the amendment in the written statement made by the present appellant was
disallowed of the fact that Poonam Bhatia was not legally divorced wife of P.V. Kapur.
It was held that such an inconsistent plea which would displace the plaintiff
completely from the admissions made by the defendants in the written statement
cannot be allowed. If such amendments are allowed in the written statement plaintiff
will be irretrievably prejudiced by being denied the opportunity of extracting the
admissions from the defendants.
43. Yet in another Swaran Anand v. Smt. Poonam Bhatia 8 by the parties in this suit. It
was held by this Court that efforts were being made to delay the decision of the
present suit.

44. The contention of the counsel for the appellant cannot be accepted because it has
been admitted in the pleadings; that because it has been admitted in the evidence led
by the appellant defendant himself and as the defendant had also stated in the
evidence that she was married to Sudershan Bhatia; and even a child was also born out
of the wedlock, the appellant cannot retract his admission and take contradictory
stand.

45. Not only there is clear admission, but it is also admitted fact that Poonam Bhatia
plaintiff wife of Sudershan Bhatia was participating in the business at Jaipur. It is
admitted by the appellant that Poonam Bhatia was Managing Director of the firm run
by Sudreshan Bhatia. It is also admitted fact that Sudershan Bhatia had purchased
number of properties in the name of his wife Poonam Bhatia at various places. The
appellant goes on to state that he has been appointed as a trustee for the minor child
born out of wedlock of Sudershan Bhatia and Poonam Bhatia, but still argues that
there was no marriage between the parties, he contradicts himself: It does not lay in
the mouth of the appellant to say now that because of the reason that there was certain
strained relations between Poonam Bhatia and her former husband or that Poonam
Bhatia had not got her passport changed after marriage and was carrying the passport
which was made earlier when she was married to her earlier husband and, therefore,
expectation of the appellant from this Court to hold that there was no marriage at all is
perhaps only a wish but not the fact and as such no argument of the appellant
defendant in this respect is acceptable and is straightway rejected.

46. The only question which arises for determination is that in the facts of the case
whether there are any shrouded circumstances in propounding the will by the
appellant to say that the will is genuine or not.

47. The trial Court has narrated suspicious circumstances and in my opinion in the
circumstances and the facts, the judgment of the trial Court in this respect cannot be
doubted.

48. It is admitted in the evidence that the testator was doing business in Jaipur and
also in Germany. He was treated in Germany one or two years earlier as well. His wife
Poonam Bhatia had accompanied him in the year 1986-87. He was admitted in Escorts
Hospital in India too. His wife was attending him. It is also admitted that the deceased
Sudershan Bhatia was also a divorcee and so was the case of Poonam Bhatia as per
the statement of Poonam Bhatia that they both were divorcees. It was also come on the
evidence right up to end that Poonam Bhatia was the Managing Director of the firm
run by Sudershan Bhatia at Jaipur. It has also come on record by way of evidence that
Sudershan Bhatia had purchased number of properties in the name of Poonam Bhatia.
It is also admitted fact that two children of Poonam Bhatia from her former husband
were staying at Jaipur with Poonam Bhatia with the consent of Sudershan Bhatia and
Sudershan Bhatia was looking after their interests as well.

49. The contention of the appellant that there were strained relations between
Sudershan Bhatia deceased and Poonam Bhatia is not proved on record, rather what
was has been proved and also admitted is that Sudershan Bhatia and Poonam Bhatia
who were living like husband and wife were having normal relations. There is no
evidence whatsoever brought by the appellant, even not a single instance of any
strained relations between the parties has been stated and in such circumstances if
both husband and wife were living normally and even a child is born, why should after
all the husband deprive the wife from inheritance; there is no explanation nor any
evidence to warrant such action.

50. Another matter which shows doubt on the propounding of Will worth mentioning
is that, even Surendra Bhatia, the appellant, the beneficiary of the Will was not having
that brotherly relations with his brother. He cannot produce a singe letter of having
been exchanged between him and his brother. The appellant is also living mostly out
of India. He does not even know the address of the deceased in Germany. He even
does not know whether his brother had his own house at Germany or it was a rented
house. He is a person who receives the information of the death of his brother from a
third source and leaves immediately without telling it to the wife of his brother for
bringing the dead-body to India, but does not bring the dead-body, rather cremates it in
Germany. The existence of the Will is not immediately announced and in the previous
litigation even there is no mention of the same. The conduct of the appellant does not
repose any confidence.

51. Even though the Will is said to have been attested by the two witnesses, the
German nationals in Germany who had been examined on Commission, but the
circumstances do depict that the Will is a creation of suspicious circumstances. This
very witness does say that the testator was in hale and healthy condition on 17-4-1989
when the Will was signed; but the testator died within three days of the Will. Any
person who is said to be normal and healthy on 17-4-1989 and was admitted in the
hospital and dies on 21 -4-1989, a doubt is definitely caused of the fact whether the
testator was healthy and in sound mind; if the Will was signed in the hospital itself,
why the certificate from the doctor or any medical attendant in the hospital when the
testator was admittedly admitted in the hospital was not taken; the Will ex. A/ 1 /1 is
either computer type or electronic type; on 17-4-1989 when he was in the hospital,
how could the testator got the computer or electronic draft is still shrouded with
suspicious circumstances.

52. Smt. Poonam Bhatia had stated that Mahar House was purchased in her name, so
were the other plots in Durgapura and Malviya Nagar etc. If the plot was in the name
of Poonam Bhatia, the testator Sudershan Bhatia could not have Willed these plots to
his brother in the Will. As regard to the Will, the attesting witness Mrs. Brigette states
that the testator was only acquaintance of her but the document of the Will was not
handed over to her for safe custody. She says that she was not knowing the testator
prior to signing this document nor did she know the appellant Surendra Bhatia prior to
death of Sudershan; but goes on to say that the testator had gone in Coma on 20-4-
1989. She says that 24 hours before the death, the testator was in the intensive care of
the hospital. She does not remember the room where Sri Bhatia was admitted but
states that at the time of signing of the Will, no doctor or nurse was ever present and
the Will was already ready when she reached there but she cannot say as to who might
have drafted the Will. She did not know as to whom the Will was dictated or who had
typed it. The second attesting witness had come after her arrival i.e. within one hour.
She says that she had met Surendra Bhatia appellant on 22-4-1989 at Frankfurt and
that he was not known to her earlier. To a question in the cross-examination she says
that Ex.A/1 is not the original Will, but it is only a photostat copy.

53. The other witness Dr. Uri Fehr says that he has signed the Will in the presence of
Ms. Brigette Goerke. He says that Shri Bhatia was in good health. He was also hot
known to the appellant Surendra Bhatia until after the death of Sudershan Bhatia. He
even does not know as to who had typed the Will or to whom the Will was dictated.
He says that the testator had underwent the surgery after 17-4-1989. He says that he
had picked up the appellant from airport. He says that Surendra Bhatia had told him
that Sudershan Bhatia had a wife and a child.

54. Surendra Bhatia states that the Will in question was given to him by Brigette
Goerke in the sealed cover whereas the witness Brigette Goerke states that she was not
keeping this Will for safe custody. He admits that the plots situated in Durgapura were
purchased in the Joint name of Poonam Bhatia and Sudershan Bhatia. He also admits
that in the year 1987 a plot was purchased near Mahar house in the joint name of
Poonam Bhatia and Sudershan Bhatia. He also admits that he was never the Director
of the company of his brother during the lifetime of his brother.

55. The statement of Brigette Goerke does not repose any confidence. She does not
know the appellant Surendra Bhatia. She was also not knowing Dr. Yuri, but still when
Surendra Bhatia reaches the hospital on 22-4-1989, she is already present in the
hospital along with other persons to receive him. If none of the parties i.e. appellant
and Brigatte was knowing each other before the death of the deceased; it is
unimaginable that this lady would be waiting for Surendra Bhatia on the next date of
death along with other persons. The conduct of attesting witness is definitely
suspicious and doubtful. Apart from the fact that in the Will it is mentioned that
Surendra Bhatia would start looking the interest of minor children of the deceased, but
the appellant Surendra Bhatia did not take single step to take care of the daughter of
deceased in any manner.

56. In the case of Rajmata Smt. Sushila Kum. v. Maharaj Sri A. Singh 9 it was held
that the registration of the will by the testator cannot be held to be suspicious
circumstance. It is held that nothing damaging could be elicited out in the lengthy
cross-examination of these two attesting witnesses. If the Will is type written, it is a
suspicious circumstance. It was held that if the propounder succeeds in resolving the
suspicious circumstances the Court was bound to grant the probate.

57. A Division Bench of this Court in the case of Smt. Suraj Devi v. Smt. Sita Devi 10
had held that the question of probate is only restricted to proof of legal and valid
execution of the Will and the question of marriage and divorce are irrelevant and that
if the Will is duly signed by the testator and attested by the witness, in that situation,
the will is to be acted upon unless there are suspicious circumstances to ignore the
same.

58. In the case of Vrindavanibai Sambhaji Mane v. Ramchandra Vithal Ganeshkar 11 it
was held that the propounder taking prominent part in execution of Will which confers
substantial benefits on him, shaky signature, feeble mind which is likely to be
influenced, unfair and unjust disposal of property, were not present in the Will and,
therefore, it could not be considered that the will was involving any suspicious
circumstance.

59. Delhi High Court in the case of Mathew Jacob v. Ms. Salestine Jacob 12 had held
that the production of one attesting witness is sufficient to inherit the property and
whole of the property was given to one only. It was held that the Will becomes
suspicious.

60. In the case of Smt. Jaswant Kaur v. Smt. Amrit Kaur13 it was held that in a case
where the will is shrouded in suspicion, its proof ceases to be a simple lis between the
plaintiff and the defendant and the true question which arises for consideration is
whether the evidence led by the propo under of the Will is such as to satisfy the
conscience of the Court that the Will was duly executed by the testator. It was
impossible to reach such satisfaction unless the party which sets up the Will offers a
cogent and convincing explanation of the suspicious circumstances surrounding the
making of the Will.

61. In the case of Kalyan Singh v. Smt. Chhoti14 it was held that in order to judge the
credibility of witnesses and disengage the truth from falsehood the Court is not
confined only to their testimony and demeanour. It would be open to the Court to
consider circumstances brought out in the evidence or which appear from the nature
and contents of the documents itself. It was observed as under (at pp.402 - 403 of
AIR):-

       "A Will is one of the most solemn documents known to law. The executants of
       the Will cannot be called to deny the execution or to explain the circumstances
       in which it was executed. It is, therefore, essential that trustworthy and
       unimpeachable evidence should be produced before the Court to establish
       genuineness and authenticity of the Will. It must be stated that the factum of
       execution and validity of the Will cannot be determined merely by considering
       the evidence produced by the propounder. In order to judge the credibility of
       witnesses and disengage the truth from falsehood the Court is not confined only
       to their testimony and demeanor. It would be open to the Court to consider
       circumstances brought out in the evidence or which appear from the nature and
       contents of the documents itself. It would be also open to the Court to look into
       surrounding circumstances as well as inherent improbabilities of the case to
       reach a proper conclusion on the nature of the evidence adduced by the party."

62. In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, 15 it was held that
the party propounding a Will or otherwise making a claim under a Will is no doubt
seeking to prove a document. If the document is alleged to be signed by any person,
the signature of the said person must be proved to be in his handwriting. The opinion
of the experts and of persons acquainted with the handwriting of the person concerned
are made relevant. It was held that the propounder is to be called upon to show by
satisfactory evidence that the Will was signed by the testator; that the testator at the
relevant time was in a sound and disposing state of mind; that he understood the
nature and effect of the dispositions and put his signature to the document of his own
free will. Onus is on the profounder if he discharges the above said proof of essential
facts. There can be cases where the execution of the Will can be surrounded by
suspicious circumstances. The alleged signature of the testator may be very shaky and
doubtful and evidence in support of the propounder's case that the signature in
question is the signature of the testator may not remove the doubt created by the
appearance of the signature; the condition of the testator's mind may appear to be very
feeble and debilitated; and evidence adduced may not succeed in removing the
legitimate doubt as to mental capacity of the testator; the dispositions made in the Will
may appear to be unnatural. Improbable or unfair in the light of relevant
circumstances, or the Will may otherwise indicate that the said dispositions may not
be the result of the testator's free will and mind. In such cases the Court would
naturally expect that all legitimate suspicions should be completely removed before
the document is accepted as the last Will of the testator. It was further observed in the
above said case that for deciding material question of fact which arise in applications
for probate or in actions on Wills, no hard and fast or inflexible rules can be laid down
for the appreciation of the evidence. What circumstances would be regarded as
suspicious cannot be precisely defined or exhaustively enumerated. That inevitably
would be a question of fact in each case.

63. The Supreme Court in the above said case had held that even though the scribe
had been proved by two attesting witnesses and after going through the evidence had
confirmed the finding of the High Court to the effect that the Will was not a valid
Will.

64. In view of the settled law that it is up to the propounder of the Will to clear all the
doubts and disputes of the Will; in the present case, the defense of the appellant stands
falsified on every material aspect i.e. on the factum of marriage of his brother with the
plaintiff; the so-called strained relations between the two; his own relation were
strained with Sudershan Bhatia, the testator; he is not even knowing any details or
particulars or even not corresponding with his brother and producing nothing on record
that he was remaining in touch with his brother during his lifetime; he having no
interest or concern with the firm at Jaipur owned by his brother and Poonam Bhatia,
but all of a sudden he was made all and all in the Will about this firm; house which
was not exclusively owned by the testator could not be willed to the beneficiary; non-
mentioning of the details of the properties are certain circumstances on which the
defense stands falsified apart from the fact that even the health condition of the
testator on 17-4-1989 is doubtful of the fact whether he was in senses or not or in
sound mental condition specially when as per admission of the attesesting witness
Sudershan Bhatia had gone into coma on 20th even though the suggestion was denied
that he was in coma from 15th. If a person is unconscious and goes in coma on 20th, it
is assumed that such a patient must be in a very serious condition and still in such a
serious condition a computer or electronic typed Will is produced which is again a
photo-stat copy of the original as per the statement of the attesting witness i.e. A/1. All
these circumstances do cast a shadow on the genuineness of the Will and in my
opinion, the trial Court had rightly rejected the existence of the Will holding that it is
not above suspicion. The medical treatment record could have depicted the condition
of the testator which has been not got produced by the propounder.

65. In view of the above-said reasons and discussions, I do not find any merit in the
misc. appeal and the same deserves to be dismissed and is dismissed with a cost of
Rs. 5,000/-.

66. The connected appeal No.219/2000 (defect) has also no merit. Nothing has been
brought to the notice of the Court that the property in question for which the
succession certificate was being sought under Section 372 of the Succession Act was
of ancestral nature. Onus was on the appellant. No such onus has been discharged.
Rather, it has come in the evidence that the property in question was owned by
Sudershan Bhatia either in his name or in the joint name with his wife Poonam Bhatia.
The misc. appeal No.219/2000 (defect) is also dismissed with a cost of Rs. 5000/-.

67. Both the misc. appeals are dismissed.

Appeals dismissed.

Cases Referred.

1. (1898) 25 Ind App 161
2. AIR 1932 Lah 651
3. AIR 1963 SC 1165
4. AIR 1927 Bom 594
5. (1977) 1 SCR 72
6. AIR 1998 SC 618
7. revision petition No.343/1999 decided on 26-4-1999
8. revision petition No.1225/1999 decided on 3-11-1999
9. (1993) 2 WLC (Raj.) 325
10. (1995) 1 WLN 480
11. AIR 1995 SC 2086
12. AIR 1998 Del 390
13. AIR 1977 SC 74
14. AIR 1990 SC 396
15. AIR 1959 SC 443