Punjab-Haryana High Court
Pankaj Malik vs Bimla Malik And Anr on 12 December, 2014
Author: Surinder Gupta
Bench: Surinder Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Regular Second Appeal No.1054 of 2012 (O&M)
Date of Decision: December 12, 2014.
Pankaj Malik
..........APPELLANT(s).
VERSUS
Bimla Malik and another
........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. B.S. Bedi, Advocate
for the appellant (s).
Mr. V.K. Jain, Sr. Advocate with
Mr. J.L. Malhotra, Advocate
for respondents No.1 and 2.
*******
SURINDER GUPTA, J.
Appellant Pankaj Malik is the son of respondent No.1 Bimla Malik and brother of respondent No.2 Sonia and respondent No.3 Rivoo. The dispute relates to the property left by Ram Saran Malik, father of appellant in which respondents No.1 and 2 are claiming share on the basis of natural inheritance while the appellant has laid his claim over the entire property left by Shri Ram Saran Malik on the basis of Will dated 27.01.2003. The Will was held to be a valid and genuine document by the Court of Addl. Civil Judge (Senior Division), Panipat while in appeal, the same was found as surrounded by suspicious circumstances and was ignored.
2. The case of respondents No.1 and 2-plaintiffs, in brief, is that Shri Ram Saran Malik died on 26.02.2003. After the death of Ram Saran Malik, they received a notice on the application moved by the appellant for registration of Will allegedly executed by Shri Ram Saran Malik in his favour. They appeared and contested the application of appellant alleging the Will as SACHIN MEHTA 2015.01.05 17:02 I attest to the accuracy and authenticity of this document Chandigarh RSA-1054-2012 -2- fabricated document. The appellant turned out his mother i.e. respondent No.1 from the house after about one month of death of his father asserting his ownership over the house.
3. In written statement, the appellant alleged that Shri Ram Saran Malik left behind a Will dated 27.01.2003 bequeathing all his properties in favour of appellant. As a result of this will, he had become owner of House No.593-A, Model Town, Panipat, plot in Panipat Officers' Co-operative House Building Society, Panipat and other properties owned by Shri Ram Saran Malik as co-owner.
4. Pleadings of the parties led to the framing of following issues as follows:-
(1) Whether the plaintiffs are entitled for the relief of declaration and possession by way of partition ?OPP (2) Whether the suit property as described in para no.1 is joint property as alleged ?OPP (3) Whether the suit of the plaintiffs is not maintainable in the present form ?OPD (4) Whether the plaintiffs have no locus standi to file the present suit ?OPD (5) Whether the plaintiffs have no cause of action to file the present suit ?OPD (6) Whether Shri Ram Saran Malik executed a Will dated 27.01.2003 and bequeathed all the properties exclusively owned by him as also his share in properties in favour of defendant No.1. ?OPD (7) Whether the answering defendant is only legal heir of the suit properties of late Shri Ram Saran Malik ?OPD (8) Whether the suit has not been properly valued for the purposes of Court fees ?OPD (9) Relief.
5. While recording findings on issue No.6, learned Additional Civil SACHIN MEHTA 2015.01.05 17:02 I attest to the accuracy and authenticity of this document Chandigarh RSA-1054-2012 -3- Judge (Senior Division), Panipat on perusal of evidence, reached the conclusion that Will dated 27.01.2003 was proved as legally and validly executed by Shri Ram Saran Malik bequeathing his all properties in favour of appellant but this finding as already discussed in para No.1 above, was reversed by the first Appellate Court and suit of the plaintiffs-respondent to the extent of declaration and joint possession was decreed, while relief qua partition and exclusive possession was declined. Cross objections filed by appellant-defendant No.1 were dismissed.
6. I have heard learned counsel for the parties and have perused the paper book and the pleadings and documents, copies of which have been made available by learned counsel for the parties during the course of arguments.
7. Will (Ex.DW1/A) which is in Hindi script when translated in English reads as follows:-
"I, Ram Saran Malik son of Shri Shankar Dass Malik, resident of House No.593-A, Model Town, Panipat, solemnly scribe that the details of my movable and immovable properties as follows:-
1- Residential House No.593-A, Model Town, Panipat 2858/101/830 dated 11.02.1976.
2- A plot in The Panipat Officers' Cooperative House Building Society Limited, Panipat.
3- Share in Modern Service Station, Khasra No.734/1, 742/1, 739/1 and land.
4- Share in Modern Woolen Mills, Khasra No.734, 739, 742. The above property is situated in Tehsil and District Panipat, which I have raised from my income. I have one son and two daughters. My both daughters are married and settled with their families and spending their happy life. I have performed their marriage as per Hindu customs with all pomp and show in prosperous families where they are leading happy life. I have been giving to my daughters whatever required by them SACHIN MEHTA 2015.01.05 17:02 I attest to the accuracy and authenticity of this document Chandigarh RSA-1054-2012 -4- from time to time and as such, have no worry about my daughters. Bimla Malik is my wife and out of my property, I have already transferred some share in her name. As such, I have also no worry with regard to my wife. My son is serving me and due to him, I have respect and honour in the society. I have love and affection for him. The above referred property is my own self acquired property. Presently, I am 66 years old and suffering from diseases. There is no certainty of life and death is certain. I possess complete rights to execute Will regarding my above mentioned self acquired property. I am fully conscious and can understand my welfare, as such, in sound disposing mind, I am executing the Will that during my life time, I will remain owner of my property but after my death, my property will be owned exclusively by my son Pankaj Malik @ Pintu. No other will have any concern with my property. This is my first and last Will. No other person has got any right of any type. I have also executed power of attorney in the name of my son.
Sd/- Sd/- Sd/-
Witness Witness Ram Saran Malik"
8. The person, who was instrumental in getting this Will typed and executed by deceased, was Mr. Bharat Bhushan DW2. He is a law graduate but did not get the Will scribed from a regular deed writer. He was not even aware about typist from whom he got the same typed. He is a person who remained associated with Ram Saran Malik and was maintaining accounts, factory, service station etc. and even after his death, he is looking after the same. This shows the intimacy of this person with the appellant. As per this witness, he had gone to enquire about health of Mr. Ram Saran Malik and gave him rough draft of Will which was given to him (Bharat Bhushan DW2) a week back. On 26th January 2003, Shri Ram Saran gave the rough draft of Will with some corrections and asked him to get it typed. After getting the Will SACHIN MEHTA 2015.01.05 17:02 I attest to the accuracy and authenticity of this document Chandigarh RSA-1054-2012 -5- typed, it was given to Ram Saran Malik on 27th January, 2003. The Will recites that Ram Saran Malik had already transferred some properties in the name of his wife during his life time but no details of those properties have been given. The appellant had stated in his statement that during his life time, Shri Ram Saran Malik had given 40% share in the service station and 50% share in the factory to her. It is quite surprising and rather unbelievable that an intelligent and educated person like Shri Ram Saran Malik, made no provision for residence of his wife after his death. Admittedly, the properties mentioned in the Will were the only properties owned by Shri Ram Saran Malik. No person, who has concern for his wife, will leave her on the road without making provision of any shelter for her, as is disclosed on the reading of the Will Ex.DW1/A. Bimla Malik at the time of filing the suit and when she appeared as witness, was living at Delhi with her daughter. Sonia respondent No.2 has stated that during pendency of the suit, the appellant has even occupied their rooms in the house after throwing away belongings of respondent No.2 and 3, his sisters. Though Bimla Malik had some share in the Modern Service Station and Modern Woolen Mills but even the right of residence in the only residential house No.593-A, Model Town, Panipat during her life time was not reserved vide Will Ex.DW1/A. She being a household lady, was not knowing about her share in the Modern Woolen Mills and Modern Service Station. The above circumstances create suspicion about the genuineness of Will Ex.DW1/A. Admittedly, Ram Saran Malik was not keeping good health and was suffering from various ailments. He was aware of hostile relations of his wife with wife of appellant, still, making no provision for residence of his wife by testator reflect that the Will was not the outcome of free mind and wish of the testator.
SACHIN MEHTA 2015.01.05 17:02 I attest to the accuracy and authenticity of this document Chandigarh RSA-1054-2012 -6-
9. The Will was got typed in Hindi. Bimla Malik has stated that her husband used to write in English and Urdu but had never written in Hindi.
Sonia-respondent No.2, while appearing as PW2 had stated that her father was suffering from various diseases and was not keeping good health or was not in proper frame of mind. In para 4 of her affidavit Ex.PW2/A, she gave the details of health of her father as follows:-
"That my father was hypertensive since 30 years before his death and suffered from Coronary Arterial Disease with post PTCA and Chronic and Acute Obstructive Pulmonary Disease and took treatment at Apollo Hospital, New Delhi. In short, he faced problems since 1996, when he was first operated for angioplasty. He suffered several mild, silent coronary & pulmonary attacks from 1997 to 2002. He actually needed a bypass surgery which could not be done in his case due to his pulmonary condition. His condition had to be monitored regularly from 1996 to 2003, when he died. I accompanied him to his doctors every time & sometimes took him from Panipat to Delhi by getting Ambulance Services from Apollo Hospital, Delhi. In June 2002, his condition deteriorated so much that we thought we would lose him. We rushed him to Apollo Hospital, Delhi. My father needed a second Angioplasty, but my father was losing faith in the Cardiac Specialists at Apollo Hospital, Delhi. I then consulted other top Cardiac Surgeons and shifted him finally to Metro Hospital, Noida and got him operated there. But his pulmonary condition really deteriorated because he developed lung infections very fast. His hands trembled badly due to continuous usage of steroids, inhalers and nebulizer. He constantly lost weight during this period and his weight came down from 78 Kgs to about 50 Kgs and he became extremely weak. We got several tests and Biopsy done several times for different organs to ascertain the cause but nothing was diagnosed. Between February 2002 to December 2002 in 10 SACHIN MEHTA 2015.01.05 17:02 I attest to the accuracy and authenticity of this document Chandigarh RSA-1054-2012 -7- months time, he was admitted 7 times in Apollo for Pneumonias in November 2002, which lasted 18 days, his condition further deteriorated. He was termed as critical and was advised to be on 24 hours Oxygen and also use the Bipap machine for forced Oxygen in December 2002, which was hired from Respironics in G.K.-II, New Delhi. He was put on continuous Oxygen and for that he had 2 big Oxygen Cylinders at home and one small one, which he kept in the car while travelling. I had to take leave from office & manage him as and when required, alongwith my mother and in fact lost two promotions because of short attendance. Only me and my mother took care of my father. My brother Pankaj and his wife never took care of my father nor they accompanied my father to the doctors/hospital nor stayed with him in his hour of need. Since December 25th 2002, after my last visit to his doctor at Apollo, since he was unable to travel, he had been put on continuous Bipap, 24 hours Oxygen and on liquid diet. My mother used to feed him, help him to change sides and prop him up and all that a patient needed help when he is completely bed ridden. She did not and could not leave his side even for a munute and was in his continuous attendance 24 hours. She was always around & took great care of him. He could barely speak a few words and was unable to discern between right and wrong. His mental faculties had failed and he was not capable of making a rational judgment."
10. Learned counsel for the appellant has argued that Shri Ram Saran Malik was an educated person who was running factory and a service station. He had made arrangement for his wife by giving her share in the factory and also in the service station. The daughters were got married by him, as such, to secure the future of his son, he bestowed his entire property to him vide Will Ex.DW1/A. Even if the Will was not a registered documents or was not scribed by a regular deed writer, the appellant has been able to prove it by SACHIN MEHTA 2015.01.05 17:02 I attest to the accuracy and authenticity of this document Chandigarh RSA-1054-2012 -8- examining marginal witnesses. Shri Bharat Bhushan DW2 is a law graduate, but the fact that the Will was not got scribed by him from regular deed writer or got registered are not the circumstances which create any suspicion about the genuineness of Will Ex.DW1/A. One of the daughter of the deceased was married at Delhi. The other daughter is now divorcee but she has taken the divorce after the death of Ram Saran Malik, as such, giving no share in his property to daughters is also not a suspicious circumstance. He has referred to the statement of respondent No.1 Bimla Malik, who has stated that the appellant is giving her money as demanded by her. It is also proved on file that the appellant had paid the loan of his father to the tune of `13 lacs as proved by DW5 Govind Ram, Manager, Canara Bank. This shows that Ram Saran Malik transferred his entire property in favour of his son as he was under debt. The fact that no arrangement was made for the shelter of his wife, is also of no consequence as he had faith in his son and had no apprehension that son will not allow his mother to live in the house.
11. The submissions of learned counsel for the appellant fail to convince me about genuineness of the Will. This fact is admitted that relation of wife of Pankaj Malik and his mother (respondent No.1) were strained, as marriage of Pankaj Malik was a love marriage. Knowing this fact, a husband will never leave his wife at the mercy of his daughter-in-law with whom his wife had hostile relation. He will always think of making her secure by making provision for her shelter.
12. The giving of money to respondent no.1 is not a factor, which in any manner, weigh in favour of the appellant because respondent No.1 has her share in the Modern Service Station and Modern Woolen Mills and could get share in the income from these concerns.
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13. If the appellant has deposited some loan amount, it also in no manner, strengthened his case, so far as the genuineness of the Will is concerned. Being the only son of Ram Saran Malik and the male person of the family looking after his business, firstly, he was under moral obligation to pay debts from the income of business left by his father. Secondly, the debt of factory and service station, even if paid by him, are to be adjusted in the account of the Mill and service station and will further go to the share of the shareholders in firms which also include respondent No.1. It is no where case of appellant that he has deposited any money from his some other income and has not accounted for payment of loan in the accounts of the mill and service station. From the statement of Gobind Ram, Manager DW5 it is clear that the amount was deposited on behalf of firm and not by an individual.
14. Perusal of Will Ex.DW1/A shows that the Will was carefully drafted and an attempt has been made to reflect it as genuine Will executed by Ram Saran Malik. Recitals were incorporated in the Will to show as if Ram Saran had given reason to ignore all his natural heirs, while bequeathing his entire property to appellant. It is a Will on plain paper having signature of the testator in the right corner. It was not got scribed from a regular deed writer. No provision was made in the Will for the shelter of respondent No.1-wife of the testator. This fact assumes more importance in view of the fact that Ram Saran Malik was not keeping good health and was aware of the strained relations of his wife and wife of his son Pankaj Malik. The Will has not even bestowed right of residence to Bimla Malik in her residential house at Panipat during her life time. It is highly unnatural that under above circumstances, a husband will leave his wife at the mercy of his son during the evening of her life. This is a serious suspicious circumstance which has not been explained by SACHIN MEHTA 2015.01.05 17:02 I attest to the accuracy and authenticity of this document Chandigarh RSA-1054-2012 -10- the appellant. Admittedly, one of the daughter of Ram Saran Malik is also a divorcee and no arrangement was made to make her life secure. Even if, she had obtained divorce after death of her father, the strain in relation start reflecting much earlier and the father would not have recited in the Will that his both daughters are well settled and happy in their matrimonial home. This reflects that the recital in the Will to this effect were not outcome of sound disposing mind and deposition of testator.
15. Registration of the Will is not required but at the same time, if the Will is registered, it is a fact which weighs in favour of genuineness of the Will. In the present case, it appears suspicious that despite having the advice of a legal professional Mr. Bharat Bhushan, the Will was not got registered. A legal mind whenever is involved in the process of execution of a Will, usually advise to get the Will scribed from a deed writer and so far as possible to get it register. In the present case, the Will failed on both these counts. Though marginal witness Anil Kakra was produced as DW3 but he opted not to put in appearance for his cross-examination despite the fact that he was resident of Panipat.
16. While referring to the partnership deed dated 28.02.2003 executed regarding Modern Service Station, learned counsel for the appellant has argued that execution of this document also shows that respondent No.1 had accepted the Will of Ram Saran Malik and that is why, she had given the share of deceased in the service station to her son.
17. The above argument of learned counsel for the appellant is without any substance. Appellant Pankaj Malik had stated that Shri Bharat Bhushan informed him regarding the Will on the next date of death of his father. Partnership deed finds no mention of the alleged Will. As the service station SACHIN MEHTA 2015.01.05 17:02 I attest to the accuracy and authenticity of this document Chandigarh RSA-1054-2012 -11- was to be continued and the appellant is the only male member of the family, this appears to have led to execution of the partnership deed, which was signed by respondents No.1 and 2. The first Appellate Court has rightly ignored this piece of document with the observation that partnership deed only recite that legal heirs of Ram Saran Malik had agreed to takeover assets of the firm and introduced Pankaj Malik as partner of the firm in place of Shri Ram Saran Malik. While summing up, the suspicious circumstances surrounding the Will, the Appellate Court in para 41 of the judgment observed as follows:-
"41. In the circumstances, as discussed above, the Will in question is held to be shrouded with suspicious circumstance as firstly the Will was not registered by the testator during his lifetime despite having the advice of an Advocate and an Accountant; secondly, there is no reason for depriving the wife and daughters of the inheritance especially when the relations of Ram Saran Malik with his son and daughter-in-law were not very cordial even during his life time, since the testator and his wife were separate in mess and residence; thirdly, the requirement of law has not been fulfilled as both the witnesses did not put their signatures in presence of each other nor acknowledged by the testator; fourthly, even at the time of getting the Will registered, if the consent of mother was there, the conspicuous absence of mother at the time of proceedings before Sub Registrar creates doubt; fifthly, there is no reference of the Will at the time of dissolving of the partnership even when, as per witness B.B. Sharma, Pankaj Malik had been informed regarding existence of the Will by them, which shows that the Will was either procured or forged later on; one of the attesting witnesses i.e. B.B. Sharma, is proved to be interested in the subject matter, as admittedly, he continued to serve Pankaj Malik in the management of the property bequeathed as a consequence of SACHIN MEHTA 2015.01.05 17:02 I attest to the accuracy and authenticity of this document Chandigarh RSA-1054-2012 -12- the Will and; lastly, ignoring the daughter, specially the divorced daughter, is a strong suspicion circumstance. It has been held in Ram Piari Vs Bhagwant AIR 1990 SC 1742 that happy marriage of a disinherited daughter or financially well settled can not add to the genuineness of the Will. ..................................."
18. On perusal of the recitals in the Will, the statement of witnesses and judgment of the Courts below, I am of the considered opinion that the first Appellate Court has committed no error of law and fact while reaching the conclusion that Will pronounced by appellant is not a genuine and valid document, worth reliance and rightly ignored the same.
19. No substantial question of law requiring determination arises.
20. As a sequel to my discussion above, this appeal has no merits. Dismissed.
( SURINDER GUPTA ) December 12, 2014. JUDGE Sachin M. SACHIN MEHTA 2015.01.05 17:02 I attest to the accuracy and authenticity of this document Chandigarh