Delhi District Court
Shri Anil Kumar Gupta vs State on 13 October, 2011
IN THE COURT OF SHRI VIMAL KUMAR YADAV:
ADDL. DISTRICT JUDGEII (NORTH): DEL
PC No. 28/09
Shri Anil Kumar Gupta
S/o late Shri Sunder Lal Gupta
R/o C5, C.C. Colony
Near Rana Pratap Bagh
Delhi. ... Petitioner
Versus
State ... Respondent
Date of institution : 26.10.2009
Date of arguments : 13.10.2011
Date of Decision : 13.10.2011
JUDGMENT
The petition filed under Section 276 of the Indian Succession Act, 1925 (hereinafter to be referred as the Act) for grant of probate of the Will executed by late Shri Sunder Lal Gupta dated 13.9.2004, is hereby disposed off through this judgment.
2. The precise facts against the back drop on which the petition has been filed are that; Shri Sunder Lal Gupta resident of C5, C.C. Colony, Rana Pratap Bagh, Delhi left for his heavenly abode on 10.11.2006 after prolonged illness. However, prior to his death a Will was executed by him on 13.9.2004 witnessed by one D.P. Bhatia, who being his neighbour and Advocate as well, besides being good personal friend of the deceased was called for this purpose. The petitioners herein being beneficiaries of the said Will, which was in respect of the shares only have filed this petition for grant PC No. 28/09 1 of the probate of the above referred Will being the last Will reflecting the wishes of the deceased Sh.Sunder Lal Gupta.
3. The citation was issued in the Hindi Daily newspaper 'Dainik Jagran', pursuant to which one Sunil Kumar Gupta appeared and filed his objections contending at the outset that the Will has not been properly executed which leads no cause of action with the petitioner and also being barred by various principles like waiver, estoppal and acquiescence etc. More so, the required attesting witnesses are not there. It is further alleged that the Will is forged and fabricated document and prepared in collusion between Anil Kumar Gupta, Ajit Kumar Gupta in conspiracy with Smt. Madhu Gupta, Smt. Purnima Gupta together with the attesting witnesses. It is further submitted that the Will has been forged and fabricated by the petitioner in order to usurp the properties left behind by late Shri Sunder Lal Gupta. There were numerous suspicious circumstances such as despite being hale and hearty why the Will was dictated to Sh. Amit Bhatia and further despite there being 100 of friends and relatives in Delhi, why Shri D.P. Bhatia was made attesting witness to the Will, who is not related to him. Then again when the stand of the petitioner about the said Will in the earlier suit bearing No. 145/07 which was fought between the petitioner and the respondent no.2 goes to indicates that the petitioner with a view to deprive the respondent no. 2, hatched a conspiracy and prepared a forged and fabricated Will on the basis of which the respondent no.2 is being attempted to be denied with valuable rights in the property left behind by the deceased Shri Sunder Lal PC No. 28/09 2 Gupta.
4. Rejoinder to the objections was filed whereby the contentions made in the objections were controverted and the case set up in the petition was reiterated by the petitioners.
5. On the basis of the pleadings, the following issues were framed on 3.2.2011:
1. Whether the Will dated 13.9.2004 has been executed properly by Shri Sunder Lal Gupta and probate of the same can be granted? OPP.
2. Relief.
6. The petitioner in support of their case examined himself as PW1, Shri D.P. Bhatia as PW2 and Shri Amit Bhatia as PW3 and thereafter closed their evidence.
7. In the intervening time, the order by which the respondent was proceeded exparte, was set aside but again the respondent was proceeded exparte since no appearance was there from his side.
8. Arguments were raised by the counsel for the petitioner and after considering the same and perusing the material placed on record, my issuewise findings are as under.
Issue No.1 It was, by the very nature of the issue, incumbent upon the petitioner to establish that the Will in question dated 13.9.2004 of late Shri Sunder Lal Gupta was executed properly by him after complying with all the PC No. 28/09 3 requirements in sound physical and mental state. Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
(a) "The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person;
and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his PC No. 28/09 4 property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR 578.
9. To establish the above aspect, the petitioner has primarily relied upon the testimony of the attesting witness Sh. D.P. Bhatia examined as PW2 and from the strength of his unassailed testimony, it is attempted to show that Shri Sunder Lal Gupta was in perfect physical and mental health when the Will was executed by him, which was witnessed by Shri D.P. Bhatia. It has also come in the evidence that the Will which is a hand written document was prepared on the dictation of Shri Sunder Lal Gupta by Shri Amit Bhatia who has been examined as PW3. Incidentally, Amit Bhatia happens to be son of Shri D.P. Bhatia, both of whom are practising Advocates. Shri Amit Bhatia has appeared as PW3 and testified that he had prepared the Will on the dictation PC No. 28/09 5 of the executor Shri Sunder Lal Gupta. The Will which was so executed is Ex.PW1/3.
10. A document has to be proved as per the Evidence Act, particularly in terms of ChapterV starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The noncompliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 SubSection (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51.
11. It has been contended on behalf of the petitioner that the signatures of Amit Bhatia are there on the Will and he was too had witnessed the execution of the Will, therefore, the requirement of two attesting PC No. 28/09 6 witnesses stands satisfied. However, the testimony of PW3 Shri Amit Bhatia is contrary to what has been contended by the counsel for the petitioner as he has deposed categoricaly that he had signed the Will as drafter of the said Will at point C. It is also stated by him that the Will was drafted by the deceased Sunder Lal Gupta as per his own wishes. It was PW3 Shri Amit Bhatia, who in his own hand writing, on the basis of oral dictation of Sunder Lal Gupta, written the Will. It makes amply clear that Shri Amit Bhatia was not the attesting witness to the Will. In this context, the Hon'ble Supreme Court has emphasised that the person put his signatures on the document for some other purpose i.e. to certify that he is scriber or a registered officer, he is not the attesting witness, reference can be made to Rupa Chand Mannulal Vs. Gangubai 1978 UCR 710 (Bom) (DB).
12. The Latin expressions 'onus probandi' and 'animo attestandi' are the two basic features in the matter of civil court's exercise of testamentary jurisdiction: Whereas 'onus probandi' lies in every case upon the party propounding a Will - the expression 'animo attestandi' means and implies animus to attest: to put it differently and in common practice it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intend that the subscription of the signature made stands by way of a complete attestation of the will and the evidence is admissible to show whether such was the intention or not."
13. In Abinash Chandra Bidyanidhi Bhattacharya Vs. Dasarath PC No. 28/09 7 Malo ILR 56 Cal. 598, it was held that a person who had put his name under the word 'scribe' was not an attesting witness as he had put his signatures only for the purpose of authenticating that he was a scribe. In the similar vein, the Privy Council in Shiam Sunder Singh Vs. Jagannath Singh 54 M.L.J. 43 held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees. In this context, reference may be made to the decision in M.L. Abdul Jabbar Sahib Vs. H.v. Venkata Sastri & Sons & others (1969) 3SCR 513 wherein in reference to Section 3 of the Transfer of Property Act, it was observed as follows:
1. "It is to be noticed that the word 'attested', the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under S. 3 are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signatures; (2) with a view to attest or to bear witness to this fact each of them hassigned the instrument to the presence of the executant. It is essential that the witnesses should have put his signatures animo attestandi, that is, for the purpose for attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signatures on the document for some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officeer, he is not an attesting witness.
It has been further observed in the above referred case, Section 3 of the Transfer of Property Act, in particular, the meaning attributed to the word 'attested' ought to be noticed and the same reads as below:
"attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the PC No. 28/09 8 instrument, or has seen some other person sign the instrument in the presence and by the direction of the executed, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary".
As regards, the former expression 'onus probandi', it is now a fairly wellsettled principle that the same lies invariably in every case upon the party who propounding the will and expected to satisfy the court's conscious that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signatures on to the will was in sound and disposing state of mind and memory and generally 'in good' physical shape as well. Ordinarily, the onus stands discharged as regards the due execution of the will if the propounder leads evidence to show that the will bears the signatures and mark of the testator and that the will is duly attested by to attesting witnesses. This attestation, however shall have to be in accordance with Section 68 of the Evidence Act, which requires that if a document is reuired by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally wellsettled that in the event of there being circumstances surrounding the execution of the Will, shrouded in doubt, mystry and suspicion, it is the paramount duty on the PC No. 28/09 9 part of the propounder to remove these suspicious mysteries and doubtful circumstances by leading satisfactory evidence.
14. It is, in the instant case, thus apparent that the Will was not executed as per the provisions of Indian Succession Act, 1925 as it was not attested by two witnesses, and therefore, cannot fall into the scope and ambit of legally executed Will notwithstanding the fact that the testimony has gone unrebutted and the respondent has not come forward to argue the case. Accordingly, the issue no.1 is decided against the petitioner and in favour of the respondent.
Relief In view of the findings recorded qua the issue hereinabove, the petition filed on behalf of the plaintiff is dismissed. Decree be drawn accordingly. File be consigned to record room.
Announced in open court (VIMAL KUMAR YADAV)
on 13.10.2011 Addl. District JudgeII (North)
Delhi
PC No. 28/09 10
PC No.28/09
13.10.2011
Present : None.
Vide separate judgment dictated and announced, the petition filed on behalf of the plaintiff is dismissed. Decree be drawn accordingly. File be consigned to record room.
(V.K. Yadav) ADJII (North) Delhi.
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