Delhi High Court
Ragni Chopra vs Rajesh & Ors. on 17 December, 2012
Equivalent citations: AIR 2013 (NOC) 183 (DEL.)
Author: V.K. Jain
Bench: V.K.Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 12.12.2012
Judgment pronounced on: 17.12.2012
+
+ CS(OS) 1371/2002
RAGNI CHOPRA ..... Plaintiff
Through: Mr Sudhir Nandrajog, Sr Adv with
Mr Jasmeet Singh, Adv.
versus
RAJESH & ORS. ..... Defendants
Through: Ms Roma Bhagat, Adv for Ds 1,3 and
5.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
V.K. JAIN, J.
1. The plaintiff before this Court is the sister of defendant No. 1 Rajesh
Malhotra and defendant No. 2 Rakesh Malhotra. Defendant No. 3 is the wife and
defendants 4 and 5 are the children of defendant No. 1.
Property No. E-59, Vasant Marg, Vasant Vihar, New Delhi, was owned by
late Shri R.M. Malhotra and late Smt. Veera Malhotra, parents of plaintiff and
defendants 1 and 2. Both of them held half undivided share each in the said
property. Vide Will dated 29.06.1988, Smt. Veera Malhotra bequeathed her half
share in the suit property to her husband Late Shri R.M. Malhotra. Vide Will dated
03.10.1993, she bequeathed her share in the said property to defendant No.1 and 3
CS(OS) 1371/2002 Page 1 of 46
to 5 in the ratio of 40:30:20:10 respectively. Vide Will dated 13.08.1995, she
maintained the above-referred bequest as far as the suit property is concerned. The
case of the plaintiff is that vide Will dated 14.05.2001, Smt Veera Malhotra,
bequeathed her half share in the suit property to her. Since late Shri R.M.
Malhotra, had bequeathed his share in the suit property to defendants 1 and 3 to 5
in the ratio of 40:30:20:10 respectively, the plaintiff claims half share in the said
property by virtue of the Will purporting to be executed in her favour on
14.05.2001. In CS(OS) No. 1371/2002 filed by the plaintiff, defendant No. 1
propounded a Will dated 07.06.2002, alleged to have been executed by late Smt.
Veera Malhotra to defendants 1 and 3 to 5 in the ratio of 40:30:20:10 respectively.
The case of the plaintiff is that the Will propounded by defendant No. 1 is a forged
and fabricated document executed under threat, pressure and coercion. The
plaintiff also alleges that defendant No. 1, on the pretext of handling income-tax
and other matters of his mother, had obtained her signature on blank papers which
were used to type the Will dated 07.06.2002 after her death. Smt. Veera Malhotra
expired on 16.08.2002. The Will dated 07.06.2002 was got registered by defendant
No. 1 on 09.07.2003. The plaintiff is now seeking partition of the suit property
along with the possession of the partitioned share.
CS(OS) 1371/2002 Page 2 of 46
2. In his written statement, defendant No. 1 has denied the execution, validity
and genuineness of the Will dated 14.05.2001 set up by the plaintiff and has
claimed the same to be unnatural and improbable. It is also alleged that the Will
dated 14.05.2001 was got executed by the plaintiff by use of undue influence and
coercion. It is also alleged in the written statement that on or around 14.05.2001,
Smt. Veera Malhotra was suffering from cancer of lymph nodes and undergoing
intensive infusional chemotherapy and, therefore, not in a position to execute the
Will dated 14.05.2001. It is also alleged that Smt. Veera Malhotra had also
executed a Relinquishment Deed dated 03.04.2001, whereby she relinquished her
share in the suit property in favour of defendants 1 and 3 to 5 in the ratio of
40:30:20:10 respectively. It is also stated in the written statement that there was no
logical or valid reason for Smt. Veera Malhotra to bequeath her entire estate to the
plaintiff, thereby disinheriting defendant No. 1, who was the only child looking her
after.
3. In his written statement, defendant No. 2 Rakesh Malhotra, has disputed the
Wills set up by the plaintiff and defendant No. 1 and has alleged that these Wills
were got executed by the plaintiff and defendant No. 1 by exercising undue
influence and coercion. According to him, the suit property is equally owned by
him, the plaintiff and defendant No. 1. It is also alleged that Smt. Veera Malhotra
CS(OS) 1371/2002 Page 3 of 46
was an illiterate person and did not have any education though she had learnt to
read and write Hindi. According to defendant No. 2, the ability of Smt. Veera
Malhotra to read and write in English is extremely limited and she knew only to
sign. Thus, according to this defendant, Smt. Veera Malhotra had died intestate.
4. The following issues were framed on the pleading of the parties:-
i. Whether the suit has not been properly valued for
purposes of Court fees and jurisdiction? OPD-1
ii. Whether Late Smt. Veera Malhotra executed valid,
legal and enforceable Will dated 29.06.1988,
3.10.1993, 13.08.1995 and 07.06.2002, if so, to
what effect? OPD-1
iii. Whether Late Smt. Veera Malhotra executed legal,
valid and enforceable Will dated 14.05.2001, if so,
its effect? OPD-1
iv. Whether the plaintiff is entitled to partition and
possession in the property No. E-59, Vasant Marg,
Vasant Vihar, New Delhi? OPP
v. Relief
5. Issue No. 1
The plaintiff has valued the suit at Rs 1 crore and paid ad valorem Court fee
on that valuation. During the course of arguments, the learned counsel for the
defendant No. 1 pointed out that in the Valuation Report filed by the plaintiff, her
own valuer M/s Knight Frank had valued the land underneath the suit property at
CS(OS) 1371/2002 Page 4 of 46
Rs 85,000/- per square yards on 01.04.2004. It was also opined in the said
Valuation Report that there has been appreciation of about 10% in last about 6-9
months. This suit has been instituted on 12.12.2002, i.e., in the Financial Year
2002-03. If 20% of the valuation given by the valuer of the plaintiff as on
01.04.2004 is deducted from the said valuation, the market value of the land itself
alone in the year 2002-03 comes to about Rs 68,000/- per square yards. Since the
plaintiff is claiming half share in the said property, the value of her share in the
land calculated at the rate of Rs 68,000/- per square yards comes to Rs
4,08,00,000/-. The report of the valuer of the plaintiff Knight Frank shows that this
property has built up area measuring 4044 square feet in the main building and 980
square feet in the servant quarters. The total built up area, therefore, comes to Rs
5,024/- square feet. No separate value of the superstructure has been given by the
valuer of the plaintiff. While giving value of some other properties in the locality,
the valuer of the plaintiff valued them only on the basis of land price, on the ground
that they were old properties. Therefore, I am not adding the value of the
superstructure to the land value given by the expert. The plaintiff, therefore, is
required to pay Court fee on the valuation of Rs 4,08,00,000/-. The plaintiff is
granted four weeks to file the deficient Court fee in terms of this judgment within
four weeks.
The issue is decided accordingly.
CS(OS) 1371/2002 Page 5 of 46
6. Issue Nos. 2 and 3
The burden of proving that the Will was validly executed and is a genuine
document is on the propounder of the Will. He is required to prove that the Testator
had signed the Will and had put his signature out of his own free Will. He is also
required to prove that the Testator, at the time of execution of the Will, had a sound
disposition of mind and was in a position to understand the nature and effect of
what he was doing. If sufficient evidence in this behalf is produced by the
propounder of the Will, the onus cast on him stands duly discharged.
Another requirement of law is that if there are suspicious circumstances
surrounding the execution of a Will, the onus is on the propounder to explain those
circumstances to the satisfaction of the Court, before the Will is accepted as a
genuine document. The suspicious circumstances may be many such as (i) the
signature of the Testator may be shaky and doubtful or different from his usual
signatures; (ii) the mental condition of the Testator may be feeble and debilitated at
the time of the execution of the Will; (iii) the disposition may be such as is found
to be unnatural, improbable or unfair in the light of relevant circumstances, such as
exclusion of natural heirs without any reason (iv) the propounder may take a
prominent part in the execution of the Will; (v) the Will may not see the light of
the day for long time; (vi) the Will may contain incorrect recital of essential facts.
CS(OS) 1371/2002 Page 6 of 46
Of course, the suspicious circumstances, alleged by a person who disputes the
genuineness of the Will, ought to be real and germane and not the imagination of a
doubting mind amounting to conjecture or mistrust.
It is also a settled proposition of law, fraud, coercion or undue influence is
alleged in execution of a Will, the burden of proving the same would be on the
person by whom such a plea is set up. (Madhukar D. Shende v. Tarabai Aba
Shedage (2002) 2 SCC 85, Sridevi and Ors. v. Jayaraja Shetty and Ors., (2005)
2 SCC 784.)
It was observed by Supreme Court in Bharpur Singh and Ors. v.
Shamsher Singh, (2009) 3 SCC 687, that though deprivation of due share to the
natural heirs by itself may not be a suspicious circumstance, it is one of the factors
which is taken into consideration by the Courts before granting probate of a Will.
It was held by Supreme Court in Rani Purnima Debi vs. Khagendra
Narayan Deb & Anr. AIR 1962 SC 567 and Gurdial Kaur & Ors. vs. Kartar
Kaur & Ors. 119 PLR 524 (SC) registration of a Will would be prima facie
evidence of its genuineness though that by itself is not sufficient to dispel all
suspicious circumstances surrounding execution of the Will,.
In Rani Purnimadebi & Another vs. Khagendra Narayan Deb (supra).
the Supreme Court was of the view that if the evidence as to registration shows that
it had been done in a perfunctory manner, the Officer who had registered the Will
CS(OS) 1371/2002 Page 7 of 46
did not read it over to the Testator or did not bring home to him that he was
admitting the execution of the Will or did not satisfy himself in some other way
that the Testator knew that it was a Will, execution of which he was admitting, the
registration by itself would not be of much value.
7. The Wills executed on 29.06,1988, 03.10.1993 and 13.08.1995 have been
admitted by the plaintiff as well as defendants No.1 and 3 to 5 who are the only
contesting parties. Defendant No.2, who disputed all these Wills was proceeded
ex-parte and did not lead any evidence. The dispute between the parties is now
confined to execution of the Will dated 14.05.2001 set up by the plaintiff and the
Will dated 07.06.2002 set up by defendant No.1.
It is an admitted position, as far as the contesting parties are concerned that
the Will dated 29.06.1988, 03.10.1993 and 13.08.1995 were got duly registered by
their parents. Under the Will dated 03.10.1993, Smt. Veera Malhotra bequeathed
her half share in the suit property to defendants 1 and 3 to 5 in the ratio of
40:30:20:10 respectively. The same was the disposition made by late Shri R.M.
Malhotra as far as the suit property is concerned. Vide Will dated 13.08.1995, the
same disposition was maintained by Smt. Veera Malhotra and Shri R.M. Malhotra
as far as the suit property is concerned. It is also an admitted fact that for quite
some time before her death late Smt. Veera Malhotra was suffering from cancer. It
CS(OS) 1371/2002 Page 8 of 46
is also an admitted position that after death of her husband late Smt. Veera
Malhotra had shifted to the flat where defendant No. 1 was residing with his family
and she continued to live there, till her death. As far as the contesting siblings are
concerned, both of them admit that the relations of late Smt. Veera Malhotra and
her husband with their second son, defendant No. 2 were far from cordial. The
Will dated 14.05.2001, therefore, needs to be viewed in the background of the
disposition made in the admitted Wills dated 03.10.1993 and 13.08.1995.
8. The Will dated 14.05.2001 purports to have been executed in the presence of
two witnesses, namely, Dr. A.J.S. Juneja and Shri Rakesh Mathur. Shri Rakesh
Mathur has come in the witness box as PW-3, whereas Dr.A.J.S. Juneja has been
examined as PW-2. In his affidavit by way of evidence, the attesting witness of the
Will dated 14.05.2001, Shri Rakesh Mathur has stated that he knew late Smt. Veera
Malhotra and her husband since his marriage to Reynoo Mathur, daughter of Shri
Ram Prakash Saroj and late Smt. Kaushal Saroj in 1976. According to him,
Malhotras were very close to his parents-in-law and they used to go together for
vacation. According to the witness Mrs. Veera Malhotra had on one of her visits to
their house, told him that she wanted him to help her in making a Will and
introduced her to a Medical Practitioner who could also, in view of her advanced
age, certify her capability to make and also be a witness to her Will. He has further
CS(OS) 1371/2002 Page 9 of 46
stated that he had given his consent for the same to Mrs.Veera Malhotra and had
also passed on the contact number of his family doctor Dr. A.J.S. Juneja to her. He
has stated that Mrs.Veera Malhotra had thereafter rung up him and asked him if it
was convenient for him to accompany her to the Registrar for the purpose of
execution and registration of her Will. He accordingly reached the office of the
Sub-Registrar at INA in the morning of 14.05.2001. Mrs. Veera Malhotra was
already there when he reached the office of Sub-Registrar. Thereafter they were
joined by Dr. A.J.S. Juneja. Mrs. Veera Malhotra read the Will and signed first,
thereafter Dr. A.J.S. Juneja signed the Will. According to the witness, he was the
last person to sign the Will.
9. In his deposition, Dr. A.J.S. Juneja has stated that sometime in the year
2001, Mr. Rakesh Mathur had called him up and said that he was sending a close
family friend to him. Subsequently, Mrs. Veera Malhotra spoke to him and
informed that she intended to make a Will and wanted him to attest the same. She
requested him whether it would be convenient for him to be present before the Sub-
Registrar on 14.05.2001 to certify her physical and mental condition, Mrs. Veera
Malhotra came to his clinic at Sarvapriya Vihar at about 9 am, where he examined
her and found her physically and mentally fit. He then reached the office of Sub-
Registrar at about 10 AM, where Mrs. Veera Malhotra read the Will and thereafter
CS(OS) 1371/2002 Page 10 of 46
signed each and every page. He then signed it as a witness and Mr. Rakesh Mathur
signed thereafter.
10. It is not in dispute that the Will dated 14.05.2001 bears signatures as well as
the photograph of late Smt. Veera Malhotra. This Will is a registered document
and therefore, some authenticity is certainly attached to the document on account of
its being registered though the registration itself is not conclusive evidence of due
execution of a Will. Due execution of the Will, implies not only that the testatrix
was in a sound and disposing state of health and mind but also that either the
contents of the documents were read and understood by her or the same were read
over and explained to her by someone else, before she appended her signature to it.
11. The following facts and circumstances, in my view, clearly indicate that the
Will dated 14.05.2001 though it bears signature of late Mrs. Veera Malhotra could
not have been executed by her as her Will
(i) According to the attesting witnesses namely Shri Rakesh Mathur and
Dr. A.J.S. Juneja, Mrs. Veera Malhotra herself had read the Will
before she signed the same in their presence. On the other hand, as
per the endorsement made on the Will, the document was read over
and explained to the testatrix and she admitted that the contents were
CS(OS) 1371/2002 Page 11 of 46
the same as she had willed. This is a material contradiction which
creates serious doubt on the authenticity of the Will set up by the
plaintiff. The testatrix herself reading the Will typed in English is
altogether different from someone reading it out and explaining its
contents to her. The endorsement to the effect that the Will was read
out and explained to Mrs. Veera Malhotra implies that she did not
have sufficient knowledge of English language and that is why
someone else had to explain its contents to her, in the language she
understood. Neither Dr. A.J.S. Juneja nor Mr. Rakesh Mathur claims
to have read over the contents of the Will dated 14.10.2005 to Mrs.
Veera Malhotra. The case of defendant No.1 is that though Mrs.
Veera Malhotra could sign in English, she was not capable of reading
and understanding the contents of a document written in English. It
would be pertinent, at this stage, to take note of the fact that the Will
dated 03.10.1993 and 13.08.1995 have an endorsement identical to the
endorsement made on the Will dated 14.05.2001. The endorsement
that the Will had been read over and explained to the testator finds
incorporation only in the Wills executed by late Smt. Veera Malhotra
and not in the Wills executed by her husband late Shri R.M.Malhotra
on the same date on which these Wills were executed by Mrs. Veera
CS(OS) 1371/2002 Page 12 of 46
Malhotra. This clearly shows that the contents of the Will dated
13.08.1995 were actually read over and explained to Mrs. Veera
Malhotra and the endorsement to this effect in her Will cannot be said
to be merely a standard statement in a Will. Had it been a standard
clause, it would have been made not only in the Wills executed by her
but also in the Wills executed by her husband particularly when the
Wills by the wife and the husband were executed and got registered on
the same date and at the same place.
(ii) Ex.DW-2/2 is the letter written by Mrs. Veera Malhotra to defendant
No.2 - Rakesh Malhotra on 26.11.1994. This letter has been written
purely in Hindi with no word of English having been inserted therein.
Admittedly, defendant No.2 is a well-educated person who is settled
out of India and who knew English very well. Had Mrs. Veera
Malhotra been fully conversant with English language, she would
have at least used some words of English language while writing to
her son who was settled abroad even at the time this letter was written.
Ex.PW-1/D-1 is the letter written by defendant No.2 - Rakesh
Malhotra to late Smr. Veera Malhotra on 24th April, 1997. The letter
has been written primarily in Hindi though a few words in English,
such as Dolly, Delhi, leave sanction, Company, Muscat, stay extend,
CS(OS) 1371/2002 Page 13 of 46
A-Block, Friday, Gulf Air and Flight have been used in the document.
The English words used in this letter have been written in capital
letters which indicates that late Smt. Veera Malhotra had very limited
knowledge of English and that is why even the English words used in
the letter were written in capital letters.
Had Mrs. Veera Malhotra been fully conversant with English
language, defendant No.2 was likely to write to her in fluent English
instead of writing in Hindi and inserting only a few easily readable
and understandable words of English, in capital letters. Ex.PW-1/4 is
the letter written by Shri Rakesh Malhotra to the plaintiff on 27th
November, 1996. This letter has been written fully in English. This is
clearly indicative of the fact that Shri Rakesh Malhotra used to write
in English, to the family members who are fully conversant with
English language and in Hindi to the person who was not well
conversant with English. The Wills dated 29.06.1988, 03.10.1993 and
13.08.1995 executed by late Smt. Veera Malhotra and Shri R.M.
Malhotra were witnessed by Shri H.S. Serna, who was a colleague and
had been a neighbour of Malhotras. In his affidavit by way of
evidence, he has stated that to the best of his knowledge and belief, he
had no recollection of Smt. Veera Malhotra speaking English in his
CS(OS) 1371/2002 Page 14 of 46
presence and that she used to converse with him in Punjabi. The
deposition of this witness indicates that late Smt. Veera Malhotra was
not well versed with English and that is why the witness despite being
quite close to the family never saw her speaking in English. It,
therefore, appears that though Mrs. Veera Malhotra knew some
English, she was not fully conversant with English language. If Mrs.
Veera Malhotra was not fully conversant with English language and
was not in a position to herself read and understand all the contents of
a document written in English, it would be difficult to accept that she
herself had read the Will dated 14.05.2001 before she appended her
signature to the document. It would be pertinent to note here that the
Will dated 14.05.2001 runs into as many as 11 typed pages and the
contents of the document could have been understood and their true
import realized only by a person who was fully conversant with
English language and not a person who knew only a little bit of
English. Another material circumstances in this regard that there is no
evidence of Mrs. Veera Malhotra having taken any formal education.
No School or College certificate of Mrs. Veera Malhotra has been
produced by the plaintiff, and the case of defendant No.1 is that she
did not have formal education though with the passage of time she had
CS(OS) 1371/2002 Page 15 of 46
learnt a few commonly used words of English and had also learned
how to sign in English. Considering the fact that defendant No.1 had
taken a specific plea that late Mrs. Veera Malhotra did not have proper
education, it was imperative for the plaintiff to produce record which
would have evidenced her having studied to the extent that she could
have understood the contents of a typed Will running into as many as
11 pages.
(iii) The most material circumstance which, in my view, creates serious
doubt with respect to genuineness and authenticity of the Will dated
14.05.2001 is the absence of any reason for Mrs. Veera Malhotra to
change the disposition made by her in her last admitted Will dated
13.08.1995. Admittedly, in the said Will, she had bequeathed her
entire share in the suit property to defendant No.1 and his family
members. To my mind, there could be two possible reasons which
could have persuaded Mrs. Veera Malhotra to change the said
disposition. The first reason could have been the behaviour of
defendant No.1 towards her. Had defendant No.1 started maltreating
Mrs. Veera Malhotra or misbehaving with her after she had executed
the Will dated 13.08.1995 that could have made her change the
disposition made earlier by her. However, the facts and circumstances
CS(OS) 1371/2002 Page 16 of 46
of the case clearly indicate that Mrs. Veera Malhotra had no complaint
against the behavior of defendant No.1 or any member of his family.
It is an admitted fact that soon after the death of her husband, late Mrs.
Veera Malhotra shifted from the suit property to the Flat in Alaknanda
where defendant No.1 and his family members were residing. It is
also an admitted position that Mrs. Veera Malhotra continued to live
with defendant No.1 till she breathed her last. It is also not in dispute
that Mrs. Veera Malhotra was suffering from cancer and it was
defendant No.1 who had been taking her to Hospital and incurring the
expenditure related to her treatment. This is also evident from the
medical record Ex.DW2/30A to DW2/30H, DW11/1 and DW10/1 to
DW10/18. Had the behaviour of defendant No.1 or any member of his
family towards Mrs. Veera Malhotra been offensive, she, instead of
continuing to live with him would either have shifted to a portion of
the suit property or to the place of the plaintiff, to live with her. Mrs.
Veera Malhotra and her husband came from an affluent section of the
Society as would be evident from the movable and immovable
properties which they owned at the time of their death. An affluent
woman such as Mrs. Veera Malhotra would, instead of suffering
misbehaviour at the hands of defendant No.1 or any member of his
CS(OS) 1371/2002 Page 17 of 46
family, would rather have shifted to the place of her daughter since the
relations between the mother and daughter, according to the plaintiff
were very cordial and the mother loved the daughter a lot. Had Mrs.
Veera Malhotra been maltreated by defendant No.1 or members of his
family, nothing prevented her from just calling her daughter and
requesting her to take her along instead of continuing to live in the
house of defendant No.1, and suffer indignities at their hands.
The Will dated 14.05.2001 contains no such recital as would indicate
any maltreatment of Mrs. Veera Malhotra at the hands of defendant
No.1 or any member of his family, though it does record the
misbehaviour of defendant No.2 and his wife towards the testatrix.
The only reason indicated in the Will dated 14.05.2001 for not giving
any share in the suit property to defendant No.1 is that he was well-
settled in life and had already inherited substantial assets of late Shri
R.M.Malhotra including his half share in the suit property. Therefore,
the plea that defendant No.1 was maltreating late Smt. Veera Malhotra
has absolutely no substance in it.
In support of her contention that defendant No. 1 was ill-treating Smt.
Veera Malhotra, the plaintiff has relied upon Ex.PW-1/9 which is a
typed letter alleged to have been written by late Smt. Veera Malhotra
CS(OS) 1371/2002 Page 18 of 46
to the plaintiff on 27.07.2002. This letter makes a reference to the
Will dated 14.05.2001 and terms defendant No. 1 as a greedy person
having no love and regard for Smt. Veera Malhotra and other family
members. However, the facts and circumstances of the case indicate
that this letter could not have been written by late Smt. Veera
Malhotra. The letter has been typed on the letterhead of late Shri R.M.
Malhotra who had died about 06 years this letter purports to be
written. During the course of arguments, it was pointed out by the
learned counsel for the defendant No. 1 that this letterhead carries the
same mistake in the spelling of Commissioner as would be seen in the
letterheads which Shri R.M. Malhotra was using in his lifetime. The
spelling of Commissioner in this letter is COMMISSIONAR which is
also the spelling in the other letterhead Ex.PW-1/D-2 which was used
by late Shri R.M. Malhotra on 08.09.1975. This is an indication that
the signature of late Smt. Veera Malhotra available with the plaintiff
on a blank letterhead of her father has been used to prepare this letter.
Considering the fact that the plaintiff had joint financial transactions
such as investment in shares and bank account with late Smt. Veera
Malhotra, coupled with the fact that late Smt. Veera Malhotra did not
have much education, it is quite possible that she had signed on blank
CS(OS) 1371/2002 Page 19 of 46
letterheads of her husband and that letterhead was misused to prepare
the letter Ex.PW-1/9, which is relied upon by the plaintiff. Another
important circumstance in this regard is that Ex.PW-1/9 is a typed
letter and not a handwritten letter. In ordinary course of human
conduct, late Smt. Veera Malhotra would have herself written a letter
instead of directing someone else to type out a letter of this nature for
her. Admittely, Smt. Veera Malhotra was living with defendant No. 1
and his family members, on the date the letter Ex.PW-1/9 purports to
have been signed by her. No evidence has been led by the plaintiff to
prove as to who typed the letter Ex.PW-1/9 on the instructions of Smt.
Veera Malhotra. The accuracy of the language used in this letter
indicates that it was authored by a person who was very well-versed
with English language. As noted earlier, there is no evidence of Smt.
Veera Malhotra being a well conversant with English language and the
facts and circumstances of the case indicate that she knew only a little
bit of English. Since late Smt. Veera Malhotra was suffering from
cancer at the time the letter Ex.PW-1/9 purports to have been signed
by her on 27.07.2002, she was unlikely to go out to get such a letter
typed from a typist and no one in the house of defendant No. 1 would
have typed a letter of this nature for her. The case of the plaintiff is
CS(OS) 1371/2002 Page 20 of 46
that Ex.PW-1/9 was delivered by late Smt. Veera Malhotra to her
husband at the time he visited her in the house of defendant No. 1. The
husband of the plaintiff has not come in the witness box to corroborate
the version of the plaintiff in this regard. Even otherwise, it would be
quite unnatural for a mother to get a letter of this nature typed and then
hand it over to her son-in-law for being passed on to her daughter.
Instead of expressing her grievance by way of a typed letter, a mother
would rather verbally express her grievance to her son-in-law and
request him to bring it to the knowledge of her daughter. In fact, she
would herself speak to her daughter on telephone and complain
against the son instead of taking the trouble of getting a letter typed
from outside for this purpose. In her deposition, the plaintiff has
stated that late Smt. Veera Malhotra had already spoken to her about
the contents of the letter and her intention to make such a letter. I fail
to appreciate why late Smt. Veera Malhotra would like to prepare a
record evidencing the ill-treatment of her son and still continue to
reside with him. As noted earlier, instead of continuing to suffer
indignities in the house of defendant No. 1, she would have preferred
to shift to the place of the plaintiff. In fact, the letter dated 27.07.2002
does not appear to be in sync with the contents of the Will dated
CS(OS) 1371/2002 Page 21 of 46
14.05.2001 which contains absolutely no allegation of misbehavior or
maltreatment of late Smt. Veera Malhotra at the hands of defendant
No. 1 or his family members.
(iv) The second reason which, in my view, could have impelled late Mrs.
Veera Malhotra to change the disposition made vide Will dated
13.08.1995 was the financial condition of her daughter. Had there
been substantial impairment in the financial condition of the plaintiff
between 13.08.1995 to 14.05.2001 that could have been a valid reason
for late Mrs. Veera Malhotra to change the disposition dated
13.08.1995, however, there is no evidence of any such impairment in
the financial condition of the plaintiff. The plaintiff filed an Income
Tax Return of Rs.7,45,000/- in 1997-98. It has also come in evidence
that she owns flat at posh Napean Sea Road in Mumbai and flat in
Worli (Mumbai). Her husband is the only son of his mother, who
owns a house No.E-6/7, Vasant Vihar, her children study abroad, and
she took her parents abroad for holidaying. She was bequeathed half
share in a flat in Alaknanda, besides substantial number of shares
/debentures etc.
(v) It has been recorded in the Will dated 14.05.2001 that defendant No.1
was well-settled in life and had already inherited substantial assets of
CS(OS) 1371/2002 Page 22 of 46
late Shri R.M.Malhotra, but, this was also the position when she
executed the admitted Wills dated 03.10.1993 and 13.08.1995. Even
at the time of execution of the Will dated 03.10.1993 and 13.08.1995,
she knew that her husband had bequeathed his estate including his
share in the suit property to defendant No.1 and his family members.
Despite that, she chose to bequeath her share in the suit property to
defendant No.1 and his family members. Therefore, the reason given
in the Will dated 14.05.2001, to alter the disposition made on
03.10.1993 and 13.08.1995 does not appear to be true and correct.
This is also not the case of the plaintiff that between 13.08.1995 to
14.05.2001, defendant No.1 had become so wealthy that he needed no
share in the property of his mother and that is why late Smt. Veera
Malhotra decided to bequeath her entire share in the suit property to
the plaintiff, to the complete exclusion of defendant No.1 and his
family members.
(vi) At the time she executed the Wills dated 03.10.1993 and 13.08.1995,
late Smt. Veera Malhotra was residing in the suit property with her
husband. At that time, the defendant No. 1 and his family members
were not residing with them. Despite that, she chose to bequeath her
entire share in the suit property to defendant No. 1 and his family
CS(OS) 1371/2002 Page 23 of 46
members. Therefore, when shifted to the place of defendant No. 1,
after the death of her husband, she would have come rather closer to
defendant No. 1 and was unlikely to change her previous dispositions
so as to wholly exclude defendant No. 1 and his family members from
her share in the suit property.
(vii) In the normal course of human conduct, a person seeking to execute a
Will would like to associate a relative or a close friend in execution of
the said Will by requesting him to be a witness to the execution. PW3
Shri Rakesh Mathur, admittedly, was not related to Late Smt.Veera
Malhotra. He claims that late Smt.Veera Malhotra used to frequently
visit his house and during one of such visits, she had expressed desire
to make a Will and sought his help in this regard. Admittedly, he was
also not a neighbour of Late Smt.Veera Malhotra. As noted earlier,
Late Smt.Veera Malhotra was suffering from cancer at the time the
Will dated 14.5.2001 is alleged to have been executed by her.
Considering her critical illness, it is quite unlikely that Late Smt.Veera
Malhotra would be a frequent visitor to the house of this witness as is
claimed by him. In his cross examination, Shri Rakesh Mathur has
admitted that from 1996 till the death of Smt.Veera Malhotra in the
year 2002, he never visited her nor was he invited to the place where
CS(OS) 1371/2002 Page 24 of 46
she was living with defendant No.1 and his family members. Had this
witness been so close to Late Smt.Veera Malhotra that not only she
confided in him about her intention to execute a Will but she also
asked him to arrange a doctor to certify her fitness and witness the
Will she was seeking to execute, it is unlikely that he would not have
bothered to visit her even once in last six years of her death.
According to Mr. Rakesh Mathur, he had advance intimation that he
would be witnessing the execution of the Will by late Smt. Veera
Malhotra. Had that been the position, late Smt. Veera Malhotra would
have got his name typed as a witness in the document itself. This is yet
another indicator that he did not witness the execution of the Will by
late Smt. Veera Malhotra.
(viii) As far as the other attesting witness Dr.A.J.S.Juneja is concerned, his
testimony does not inspire any confidence at all. In the ordinary
course of human conduct, a person seeking certification of her fitness
to execute a Will, if he/she is already under treatment of doctors,
would request one of his/her treating doctors to certify the state of her
health and, if possible, also witness the execution of the Will he/she is
seeking to execute. Another alternative course of conduct could be to
request a nearby doctor to certify the state of health of the testator and
CS(OS) 1371/2002 Page 25 of 46
witness the execution of his Will. Dr. A.J.S.Juneja was not the
treating doctor of Late Smt.Veera Malhotra, though she being a patient
of cancer was getting treatment from various other doctors. He was
also not a doctor in the neighbourhood of Late Smt.Veera Malhotra. It
is most unlikely that instead of requesting a treating doctor or a doctor
in the neighborhood to certify her health and witness the execution of
her Will, Late Smt.Veera Malhotra would have requested Shri Rakesh
Mathur to arrange a doctor for this purpose.
In his affidavit by way of evidence, Dr.A.J.S. Juneja has stated that the
elder son of Late Smt.Veera Malhotra (defendant No.1) loved her
money whereas daughter (plaintiff) loved her. Since in the Will
alleged to have been executed by Late Smt.Veera Malhotra on
14.5.2001, there is no such recital as would indicate that defendant
No.1 was after the wealth of Late Smt.Veera Malhotra, there seems to
be no basis of this witness making such a statement in his affidavit.
Therefore, it appears to me that he was trying to help the plaintiff by
making this kind of statement. In para 4 of his affidavit by way of
evidence, this witness stated that on reaching the Office of Sub-
Registrar, he signed as an attesting witness as well as on his certificate
on the Will and, thereafter the Will was signed by Shri Rakesh Mathur
CS(OS) 1371/2002 Page 26 of 46
and Late Smt.Veera Malhotra. He further stated that thereafter they
went before some official who took their signature and thumb marks
after putting some questions to them. On the other hand, in his cross-
examination, he stated that he had put the rubber stamp and signature
on the medical certificate as well as the signature as attesting witness
in the physical presence of the Sub-Registrar. This is a material
contradiction in the testimony of the witness and thereby erodes his
credibility. As per this witness, he had examined Late Smt.Veera
Malhotra in his clinic. If that was the position, the certificate would
have been signed and stamped by him in the clinic and not in the
Office of the Sub-Registrar. According to this witness, he had been
informed in advance that Late Smt.Veera Malhotra wanted him to
attest her Will. However, the Will dated 14.5.2001 does not have the
name of the witness typed on it. Had Late Smt.Veera Malhotra chosen
him to attest her Will, she would have got his name typed as an
attesting witness, when the Will was got prepared by her.
(ix) It has come in the deposition of Shri Rakesh Mathur and Dr.A.J.S.
Juneja that Late Smt.Veera Malhotra had read aloud, the Will while
sitting on a parapet outside the Office of the Sub-Registrar. The
conduct attributed to the testatrix, by the witnesses, appears to be
CS(OS) 1371/2002 Page 27 of 46
unnatural because if the Will was prepared on the instructions of Late
Smt.Veera Malhotra, there could be no reason for her to read it again
outside the Office of the Sub-Registrar and that too aloud, in the
presence of the witnesses. According to the witnesses, she read aloud
both the copies of the Will. This, again, would not be in conformity
with normal human conduct.
(x) In the endorsement made on the top of the Will dated 14.5.2001, the
date of expiry of the passport of Late Smt.Veera Malhotra has been
recorded as 26.4.2002 though the correct date of expiry of her passport
is 26.4.2004. No doubt, a mistake could have been possible while
writing the date of expiry of the passport but what is material in this
regard is that the very same mistake also appears on the Will dated
13.8.1995 executed by Late Smt.Veera Malhotra. It was submitted by
learned senior counsel for the plaintiff that there was no mistake in
writing the date of expiry of the passport in the Will dated 13.8.1995.
The contention, however, is incorrect. It is quite evident from a
perusal of Ex.DW1/P1 and Ex.DX1 that the date of expiry of the
passport of Late Smt.Veera Malhotra noted at the time of registration
of the Will dated 13.8.1995 was 26.4.2002 and not 26.4.2004. In
these circumstances, the contention of learned counsel for defendant
CS(OS) 1371/2002 Page 28 of 46
No.1 that the date of expiry of the passport was lifted by the plaintiff
from the Will dated 13.8.1995 cannot be said to be wholly unfounded.
(xi) In the Will dated 14.5.2001, the HUF of which Late Smt.Veera
Malhotra was a member, has been described as R.M.Malhotra and
Sons(HUF) though Shri R.M.Malhotra had expired in the year 1996.
Para 7 of the Will dated 14.5.2001 contains a recital that the testatrix
had ¼ share in the assets of the HUF R.M.Malhotra and Sons. This
recital is factually incorrect since, defendant No.2 Shri Rakesh
Mathur, had already separated from the HUF on 17.3.2000 as would
be evident from Ex.DW2/8(colly) which, inter alia, comprise the
agreement executed on 17.3.2000 whereby, it was agreed that the
share of Mr.Rakesh Mathur in the ownership and rental of commercial
Flat No.705 in Prakash Deep Building, Tolstoy Marg, New Delhi
which was owned by the HUF, was determined at 25%. In fact, page 1
of this document incorporates a specific recital that by a separate deed
of partition of even date, a partition of all assets of the HUF barring
immovable assets had already been affected, as regards the share of
Mr.Rakesh Mathur and his only remaining interest in the HUF was as
regards the above-referred immovable property of the HUF. As stated
by Mulla in Hindu Law(18th Edition), intention being the real test, an
CS(OS) 1371/2002 Page 29 of 46
agreement between the members of a joint family to hold and enjoy
the property in defined shares, as separate owners, operates as
partition, although there may have been no actual position by metes
and bounds. Thus, there was a partition of the HUF as far as
defendant No.2 Shri Rakesh Mathur is concerned and therefore the
recital to the effect that Late Smt.Veera Malhotra had ¼ share in the
HUF on 14.5.2001 was factually incorrect.
(xii) Para 8 of the Will dated 14.5.2001 contains a recital that defendant
No.2 Shri Rakesh Mathur and his wife do not deserve any share in the
immovable assets of the testatrix. However, vide Para 7 of the
document, undivided interest of the testatrix in the assets of the HUF
stands bequeathed to Shri Rakesh Mathur as an absolute individual
owner. Therefore, the recital contained in para 8 of the Will runs
counter to the bequest made in Para 7 thereof.
(xiii) Another unnatural aspect of the Will set up by the plaintiff is that it
purports to bequeath even the household articles such as TV, VCR,
Music System, furniture, carpet, refrigerator and Air Conditioners to
the plaintiff, though admittedly all these articles were being shared by
her with defendant No.1 and the members of his family. It is quite
unnatural for a mother to bequeath such articles solely to the daughter
CS(OS) 1371/2002 Page 30 of 46
who is not living with her, when those articles are already being used
by the son with whom she is living at the time of bequest, and against
whom she has no complaint.
(xiv) The Will dated 14.5.2001 is silent as regards the jewellery of late Smt.
Veera Malhotra. The case of the plaintiff in this regard is that since the
jewellery had already been distributed by late Smt. Veera Malhotra,
before the execution of the Will, it was not required to be referred in
the Will. However, in another suit filed by her, the plaintiff
specifically alleged that the defendant no.1 had misappropriated the
jewellery of the mother, after her death. Certified copy of the plaint in
that suit is Ex.PW1/D6. It would, therefore, not be correct to say that
the jewellery had been distributed by late Smt. Veera Malhotra before
14.5.2001. The omission to make any reference to the jewellery,
therefore, becomes significant. It has been stated by the plaintiff that
she had left her jewellery with her mother in safe custody. This,
however, does not appear to be logical since late Smt. Veera Malhotra
being an old lady suffering from cancer and living with her son was
certainly not in a position to keep the jewellery in safe custody. The
plaintiff on the other hand could have no problem in keeping the
CS(OS) 1371/2002 Page 31 of 46
jewellery in her own custody instead of leaving the same with her old
and ailing mother.
(xv) Ex.DW2/31 is the Gift/Relinquishment Deed purporting to have been
executed by late Smt. Veera Malhotra on 3.4.2001, thereby conveying
half of her share in the suit property to defendant no.1 and 3 to 5. The
stamp paper of this document purports to have been purchased on
12.3.2011 in the name of late Smt. Veera Malhotra, for the purpose of
execution of the Relinquishment Deed, as would be evident from the
endorsement made on the back of the stamp paper. The execution of
this document has been duly proved by two witnesses namely Shri
T.S. Ramji and Anil Kumar Upadhyay. However, there is no reference
to this document in the Will dated 14.5.2001. Had the Will
propounded by the plaintiff been genuinely executed by late Smt.
Veera Malhotra, this important document would certainly have found
mention in the Will. This is yet another circumstance which indicates
that the Will dated 14.5.2001 was not executed by late Smt. Veera
Malhotra.
(xvi) It would be seen from the Will dated 14.5.2001 that it bears the
address of the Textatrix as B-303, Rishi Apartment, Alaknanda
whereas in documents such as income tax return (Ex.DW2/11),
CS(OS) 1371/2002 Page 32 of 46
invoice of purchase of fridge (Ex.PW1/15), club bills (Ex.DW2/55)
and the record of the hospitals, her address has been given as B-304,
Rishi Apartments, Alaknanda. Same is the address given by her in her
bank account with HDFC bank (Ex.DW7/20 and DW7/64). This is yet
another circumstance creating doubts on the authenticity of the Will
propounded by the plaintiff.
12. The plaintiff had placed reliance upon Ex.PW1/D7 which purports to be a
letter written to her by the former Ambassador of Tunisia in India. It would be
pertinent to note here that this person was the Lessee in respect of the suit property.
This letter contains a reference to an understanding that on account of her advance
age and attachment with the suit property, late Smt. Veera Malhotra had pressed for
division of the entire property between the plaintiff and defendant no.1. However,
neither the original letter has been produced by the plaintiff nor has she examined
the author of the letter or any other person conversant with his signatures to prove
the document. Therefore, no reliance can be placed upon this unproved document.
Ex.PW1/D8 is the photocopy of the purported lease/ lease agreement filed by
the plaintiff. No signature appears on the first and second page of this document.
More importantly, neither the original document has been produced nor has the
CS(OS) 1371/2002 Page 33 of 46
Lessee been produced to prove the document. Therefore, no reliance can be placed
upon this document as well.
13. During the course of arguments, it was vehemently contended by the learned
counsel for the defendant no.1 that considering the ill state of health of late Smt.
Veera Malhotra at that time, she could not have put as many as 26 signatures on the
Will, sitting on a parapet and holding a briefcase on her lap as is claimed by the
witnesses of the plaintiff. She submitted that the Testatrix was suffering from third
stage cancer which had spread both below and above diaphragm; her hands/
fingers/feet were bent and twisted. She had suffered multiple joint destruction by
arthropathy and was undergoing chemotherapy and, therefore, unfit to adopt such
postures. She also submitted that the plaintiff had admitted in the other suit that the
Textatrix was suffering from arthritis and was using special magnetic key. The
learned counsel for the defendant no.1 referred to a number of documents on record
with respect to the serious illness from which late Smt. Veera Malhotra was
suffering. It was also pointed out by the learned counsel for the defendant no.1 that
according to the expert from FSL, the signatures on the Will dated 14.5.2001 were
freely written showing smooth line quality and matching the general signatures of
the Textatrix on the Will dated 13.8.1995 both, in the general and individual
writing characteristics and has further opined that in case of an old infirm person
writing in uncomfortable position, the smooth line quality and general
CS(OS) 1371/2002 Page 34 of 46
characteristics will change. She also pointed out that when it was suggested to him
that it was impossible for the Textatrix to adopt the posture narrated by him, he did
not deny the suggestion and merely stated that he had no comment on this.
However, I need not go into this aspect of the matter since in my view various
other circumstances discussed hereinbefore clearly indicate that the Will dated
14.5.2001 could not have been executed by late Smt. Veera Malhotra.
14. It was contended by the learned senior counsel for the plaintiff that execution
of the Will dated 14.5.2001 has been admitted by the defendant no.1 in para 4 of
his amended written statement dated 5.8.2003. The above referred paragraph, inter
alia, reads as under:
"4. That even otherwise, the alleged Will dated 14.5.2001
has been got executed by the plaintiff by use of undue influence
and coercion against the Testator which is evident from the
contents of the alleged Will read in relation with the Wills dated
29.6.1988, 3.10.1993 and 13.8.1995, which fact also finds
mention in the Testator's last and final Will dated 7.6.2002. In
fact, the Testator has even mentioned in her last Will dated
7.6.2002 that her nephew and some other interested persons
had unduly influenced her to write a Will "differently", which
has been duly regretted by her..."
To read a particular passage in a document is not a correct method of its
interpretation. The document is to be read as a whole to gather its true import. In
CS(OS) 1371/2002 Page 35 of 46
my view, if the written statement is read as a whole, the above referred paragraph
cannot be said to be an admission of due execution of the Will dated 14.5.2001.
15. It was next contended by the learned senior counsel for the plaintiff that the
husband of late Smt. Veera Malhotra having already bequeathed his half share in
the suit property to defendants no.1 and 3 to 5, it was quite natural that she (late
Smt. Veera Malhotra) wanted to bring the plaintiff at par with defendant no.1 by
bequeathing her half share in the said property to her. This argument would have
been valid, had late Smt. Veera Malhotra in her previous Wills dated 3.10.1993 and
13.8.1995 not bequeathed whole of her share in the suit property to defendants no.1
and 3 to 5. If she decided, in the year 1993 and 1995 to bequeath whole of her
share in the suit property to defendants no.1 and 3 to 5, despite her husband already
bequeathed his share in the said property to them, it required strong reasons for her
to change the previous bequest and bequeath whole of her share in the suit property
to the plaintiff, to the complete exclusion of defendant no.1, who was the only child
serving her in her old age, after the death of her husband.
16. It was next contended by the learned senior counsel for the plaintiff that the
parents of the plaintiff wanted to give a flat in 2, Tilak Marg, New Delhi to the
CS(OS) 1371/2002 Page 36 of 46
plaintiff, but since that project never took off, late Smt. Veera Malhotra decided to
bequeath her share in the suit property to her.
In his cross examination, defendant no.1 has admitted that in goods times
when there was no acrimony amongst the siblings, he and his brother had desired to
relinquish their half share each in the flat at Tilak Marg to the plaintiff and they had
handed over the booking papers with considerable deposit to the plaintiff. In my
view, this could not have been a reason for late Smt. Veera Malhotra to change the
bequest which she had made in favour of defendant no.1 and his family members.
Firstly, there is no such statement in the Will dated 14.5.2001 and secondly, had
the project in Tilak Marg taken of, the plaintiff would have been required to meet
the costs of that flat except for the booking amount which had been paid by her
brothers. Considering the value of half share in the suit property, which is
constructed in the land measuring 1200 sq yards, this could not have been a reason
to bequeath the whole of the share of late Smt. Veera Malhotra in the suit property,
to the plaintiff.
17. It was contended by the learned senior counsel for the plaintiff that various
lease agreements signed by late Smt. Veera Malhotra in English do not contain an
endorsement that the same had been read over and explained to her, which is an
indicator that she was well conversant with English language. I, however, do not
CS(OS) 1371/2002 Page 37 of 46
find merits in the contention. Late Smt. Veera Malhotra was not the only signatory
to the lease documents, her husband and/or sons also having executed the same. On
the other hand, she is the sole executor of the Will and more importantly there
would be no necessity of endorsement that the Will was read over and explained to
the Testatrix, if late Smt. Veera Malhotra was well conversant in English and was
in a position to read and fully understanding the contents of the Will dated
14.5.2001.
18. The learned senior counsel for the plaintiff has relied upon Rajendra
Shanker v. Devendra Shanker [2012 V AD(Delhi) 394], L Chamanlal (dead) by
his legal representatives v Smt. Ram Katori and another [AIR 1972 SC 2296),
Gulshan Kumar Anand v State [2011(7) AD (Delhi) 539], Naresh Charan Das
Gupta v. Paresh Charan Das Gupta [AIR 1955 SC 363], Madhwi Sharma
Ahluwalia v. State [175(2010) DLT 52] and decision of this Court dated 8.3.2011
in Smt. Lalita Sharma v. Smt. Sumitra Sharma [RFA No.361/2004]. I have
considered the proposition of law enunciated and followed in these cases.
However, in the facts and circumstances of this case, there is no escape from the
conclusion that due execution of the Will dated 14.5.2001 has not been proved by
the plaintiff. In L.Chamanlal(supra), the Court was of the view that where the
proper execution of a Will was not in dispute and there is evidence to show that the
CS(OS) 1371/2002 Page 38 of 46
Testator (an illiterate lady) had intelligently understood the contents of the Will
when it was read over to her and thereafter directed some changes in it, it could not
be said that the Will was not intelligently executed. However, in the present case,
there is no evidence that the Will dated 14.5.2001 having been read over and
explained to the Textatrix and the evidence on record clearly indicates that she was
not well versed in English language in which the said Will has been written.
Besides this, there are various other facts and circumstances as discussed in the
preceding paragraphs which clearly indicate that this Will could not have been
executed by late Smt. Veera Malhotra. In Naresh Charan Das Gupta (supra), the
Court held that the burden of proof of undue influence is on the person who alleges
the same. There is no quarrel with the proposition of law that undue influence is
required to be proved by the person who pleads such an allegation. However, in the
case before this Court, though there is no evidence of any undue influence having
been exercised by the plaintiff or her mother, the due execution of the Will dated
14.5.2001 has not been proved by the plaintiff. The decision in Madhwi Sharma
(supra). Rajendra Shanker (supra) and Gulshan Kumar Anand (supra) are the
judgments written by me. Applying the proposition of law, which I followed in the
above referred cases, I am of the view that the plaintiff has failed to prove due
execution of the will propounded by her. In Lalita Sharma(supra), this Court
referred to the decisions of Apex Court in Pushpavathi v. Chandraraja Kadamba
CS(OS) 1371/2002 Page 39 of 46
[(1973) 3 SCC 291] holding therein that where the signatures of the Testator was
challenged as a forged signatures and the Will does not come from the custody of a
public authority or a family solicitor, the fact that the depositions made in the Will
were unnatural, improbable or unfair, would undoubtedly create some doubt about
the Will, especially, when the document is unregistered and comes from the
custody of a person who is major beneficiary under the Will. This judgment is also
relevant with respect to the Will dated 7.6.2002 propounded by the defendant no.1.
I have taken a view that due execution of the Will dated 7.6.2002 could not be
proved by the defendant no.1. It would, however, be pertinent to note here that not
only the Will dated 7.6.2002 relied upon by the defendant no.1 but also the Will
dated 14.5.2001 relied upon by the plaintiff comes from the custody of the major
beneficiary under the Will.
19. Coming to the Will dated 7.6.2002 propounded by the defendant no.1, I find
that the plaintiff has examined DW5 Ms. Deepika Bhardwaj and DW6 Shri Rajesh
Trehan who claims to have witnessed execution of the said Will. The case of the
plaintiff is that the signatures of late Smt. Veera Malhotra on this document have
been forged and in this regard the plaintiff has relied upon the testimony of Shri
Anurag Sharma, a handwriting expert from CFSL, who in his report Ex.PW4/1 has
opined that the person who wrote the admitted signatures mark A1 to A21 did not
CS(OS) 1371/2002 Page 40 of 46
write the questioned signatures mark Q1 to Q4 (on the Will dated 7.6.2002). The
report was challenged by the learned counsel for the defendant no.1, on a number
of grounds including that the original photographs taken by the expert were not
sent to him. However, in my view, the opinion of the handwriting expert apart,
there are various other facts and circumstances as stated hereinbelow, which create
serious doubts on the authenticity of the Will dated 7.6.2002 and indicate that this
document was not executed by late Smt. Veera Malhotra:
(i) The previous Will dated 29.6.1988, 3.10.1993 and 13.8.1995 were got
duly registered by late Smt. Veera Malhotra. Same was the position
with respect to the Wills executed by her husband on the same dates.
However, the Will dated 7.6.2002 was not got registered though late
Smt. Veera Malhotra was alive for more than two months after this
document is alleged to have been executed by her.
It was contended by the learned counsel for the defendant no.1 that
being extremely unwell, late Smt. Veera Malhotra was not in a
position to go to the Sub-Registrar's office for registration of this
document. In her written arguments, the plaintiff has stated that late
Smt. Veera Malhotra had several times gone to Batra Hospital by car,
which indicates that she was in a position to attend the office of the
Sub Registrar. That apart, the Sub Registrar could have been requested
CS(OS) 1371/2002 Page 41 of 46
by the defendant no.1 to visit their house for the purpose of
registration of the Will dated 7.6.2002, since this is not his case that he
was not aware of execution of the said Will.
(ii) The Will dated 7.6.2002 does not bear any photograph or thumb
impression of late Smt. Veera Malhotra, though the previous Wills
executed by her were not only signed but also thumb marked by her
and bear her photograph.
(iii) The case of the defendant no.1 is that vide Gift/Relinquishment Deed
dated 3.4.2001, late Smt. Veera Malhotra had gifted /relinquished 50%
of her share in the suit property to defendant no.1 and his family
members. However, para 1 of the Will dated 7.6.2002 states that "In
case of any reason my share in the aforesaid flat is restored to
original one half due to my earlier Gift/Relinquishment Deed not
having been accepted by the beneficiaries". Since late Smt. Veera
Malhotra was residing with defendant no.1, she could not have been
unaware as to whether the Gift/Relinquishment Deed dated 3.4.2001
had been accepted by the beneficiaries or not. Moreover, the
Gift/Relinquishment Deed contains an endorsement of acceptance by
the beneficiaries and the endorsement has been duly signed by them.
Therefore, there could be no question of donees denying the
CS(OS) 1371/2002 Page 42 of 46
Gift/Relinquishment Deed. The said recital, therefore, creates serious
doubt about the authenticity of the Will set up by defendant no.1.
(iv) The Will dated 7.6.2002 purports to have been attested by the
witnesses Ms. Deepika Bhardwaj and Shri Rajesh Trehan. According
to defendant no.1, though late Smt. Veera Malhotra had executed the
Will dated 3.10.1993 and 13.8.1995 bequeathing whole of her share in
the suit property to defendant no.1 and 3 to 5, she chose to make the
Will dated 7.6.2002 because she wanted to give her half share in Flat
No.B-403, Rishi Apartment, Alaknanda, New Delhi to defendant no.2
Mr. Rakesh Malhotra. This is also an admitted fact that the relations
between late Smt. Veera Malhotra and defendant no.2 Shri Rakesh
Malhotra were far from being cordial. There is no evidence of any
improvement in the relations of late Smt. Veera Malhotra with
defendant no.2 Mr. Rakesh Malhotra by the time the Will dated
7.6.2002 is alleged to have been executed. The Will contained
absolutely no reason for late Smt. Veera Malhotra changing the earlier
bequest made by her, as far as her share in Flat No.403, Rishi
Apartments, Alaknanda, New Delhi was concerned. Under the Will
dated 13.8.1995, she had bequeathed her half share in the said flat to
CS(OS) 1371/2002 Page 43 of 46
the plaintiff Smt. Ragni Chopra. Also, the Will contained no reference
to the previous Wills dated 29.6.1988, 3.10.1993 and 13.8.1995.
(v) It has been recorded in this document that persuasive powers were
used by the nephew of the Textratix and other interested persons
including Mrs. Usha Singh to make her write the Will differently and
she regretted their role. However, there is no evidence of nephew Mr.
K.L. Sahni or any other person namely Mrs. Usha Singh being
involved in the Textatrix writing some other Will.
(vi) It has been claimed by the witness of defendant no.1 namely Mrs.
Deepika Bhardwaj that the Will dated 7.6.2002 was read over and
explained by her to late Smt. Veera Malhotra. However, the Will
contains no endorsement to this effect.
(vii) The Will dated 7.6.2002 is a typed document. This is defendant no.1's
own case that late Smt. Veera Malhotra being extremely sick, she was
not in a position to move out of the house. Therefore, it was not
possible for her to visit the Deed Writer to draft the Will for her.
According to Mrs. Deepika Bhardwaj, she had prepared the outlines of
the Will as per the instructions of late Smt. Veera Malhotra, though
she did not prepare the final Will. There is no evidence as to who
prepared the final Will dated 7.6.2002. According to Mrs. Deepika
CS(OS) 1371/2002 Page 44 of 46
Bhardwaj, Ex.DW2/1 (the Will dated 7.6.2002) was not the document
which she had given to late Smt. Veera Malhotra since that was a
point-wise document. When her attention was drawn to the portion C
to C of the Will dated 7.6.2002, she stated that the same was not
prepared by her. Same was the position when the attention of the
witness was drawn to portion D to D1, E to E1 and F to F1. This
becomes important since being extremely sick and immobile, late Smt.
Veera Malhotra was not in a position to get the Will prepared of her
own and Mrs. Deepika Bhardwaj does not claim to have got the final
Will prepared and typed for late Smt. Veera Malhotra. According to
the witness, late Smt. Veera Malhotra had told her that she would take
the help of a resident of Rishi Apartment. However, the name of that
person has not been given by the witness.
20. For the reasons stated hereinabove, I hold that the Will dated 14.5.2001,
though signed by late Smt. Veera Malhotra, was not executed by her. I also hold
that there are suspicious circumstances surrounding execution of the Will dated
7.6.2002 which defendant no.1 has failed to explain to the satisfaction of the Court
and, therefore, due execution of the said Will is also doubtful. The issues are
decided accordingly.
CS(OS) 1371/2002 Page 45 of 46
21. Issues No.4 and 5: In view my findings on Issues no.2 and 3, the plaintiff is
not entitled to partition or possession of the suit property. The Issues are decided
accordingly.
ORDER
In view of my findings on the Issues, the suit is hereby dismissed. However, in the facts and circumstances of the case, there shall be no orders as to costs.
Decree sheet be drawn accordingly.
V.K.JAIN, J DECEMBER 17, 2012 BG, 'sn'/rd/ks CS(OS) 1371/2002 Page 46 of 46