Delhi District Court
Smt. Asha Sharma @ Neelam Sharma vs The State on 16 July, 2011
IN THE COURT OF SH. A.K. CHAWLA : DISTRICT JUDGE (N)
DELHI
PC 16/07
Unique Case ID No.02401C0161742007
Smt. Asha Sharma @ Neelam Sharma
W/o Shri Kamal Sharma
R/o 18/68, Gali No.3,
East Moti Bagh, Sarai Rohilla,
Delhi 110 007. ..... Petitioner
Versus
1. The State
2. Shri Vishal Sharma
S/o Late Shri Narender Kumar Sharma
3. Shri Sachin Sharma
S/o Late Shri Narender Kumar Sharma
4. Shri Vivek Sharma
S/o Late Shri Narender Kumar Sharma
All above R/o H. No.22, Ward No.7,
Govindpura, Near Deepak Cinema,
(Udham Singh Nagar)
Kashipur, (Uttranchal). ..... Respondents
PC16/07 Page 1/21
Date of Institution of the suit : 15.02.2007
Date of reserving the judgment : 08.07.2011
Date of pronouncement : 16.07.2011
JUDGMENT
Petitioner has filed the petition U/s 278 of the Indian Succession Act, hereinafter referred to as 'the said Act'.
2. Petition filed proceeds on the premise that Sh. Narender Kumar Sharma S/o Late Keshav Dutt Sharma, who was brotherinlaw (Jeeja) of husband of the petitioner and working in Central Bank of India, Kashipur, Udham Singh Nagar (Uttranchal), was permanent resident of H. No.22, Ward No.7, Govind Pura, Near Deepak Cinema, Udham Singh Nagar, Kashipur (Uttranchal) but was also residing at the petitioner's house at H.No. 18/68, East Moti Bagh, Gali No.3, Sarai Rohilla, Delhi. Said Narender Kumar Sharma died on 6.1.2006 at AIIMS. During his lifetime, Narender Kumar Sharma, hereinafter referred to as 'the deceased', is said to have booked a MIG flat with DDA but was not allotted. 'The deceased' filed a Civil Suit against DDA titled Narender Kumar Sharma Vs. DDA and the same was decreed and the appeal preferred thereagainst by DDA, was pending in the Court of the Ld. ADJ. During the pendency of the appeal, DDA PC16/07 Page 2/21 allotted flat No.105, MIG Flats, 2nd Floor, PocketA, Sector17, DwarkaII, Delhi, hereinafter referred to as 'the said flat', but neither the allotment letter was issued nor possession delivered to him by DDA. On 14.12.1999, 'the deceased' is said to have executed an unregistered Will favouring the petitioner hereinafter referred to as 'the subject Will', bequeathing 'the said flat' in favour of the petitioner, at a time when he was residing with the petitioner at H. No. BII/283, Sector6, Rohini, Delhi, out of natural love and affection and of his own free will, without any pressure, coercion or threat. It is also alleged that the deceased had debarred his sonsthe respondent Nos. 2 to 4 from inheriting 'the said flat'. It is also averred that 'the deceased' had booked 'the said flat' with his own funds and it was his self acquired property and that, the Will dated 14.12.1999 was the last Will and testament of 'the deceased'. Petitioner has thus, prayed for the grant of probate/Letters of Administration in her favour in respect of Will dated 14.12.1999.
3. Respondent Nos. 2 to 4 in the written statement filed, while denying the assertions and the allegations made in the petition and raising their own pleas and the averments on merits, have taken the PC16/07 Page 3/21 preliminary objections viz. petition was filed with malafide intention and ulterior motives to harass the respondents; petitioner was trying to defraud the respondents, who were the sons/legal heirs of the deceased and thus, wanted to grab the property of the respondents; 'the subject Will' was forged and fabricated document and that, the petitioner in connivance with her husband, had committed a criminal offence and was liable to be punished; and that, the petitioner had played a big fraud upon the respondents/legal heirs by manufacturing forged and fabricated Will. On merits, denying the assertions of the petitioner that the deceased was permanent resident of H. No.22, Ward No.7, Govind Pura, Near Deepak Cinema, Udham Singh Nagar, Kashipur (Uttranchal), the respondents have averred that the said address was the address of inlaws of 'the deceased' and thus, 'the deceased' was visiting the said house but it was never his residential address. Also, according to the respondents, 'the deceased' was working in Central Bank of India, having its branch at Kashipur and therefore, the question of his residing regularly in Delhi at the given address, did not arise at all. Also, according to the respondents, petitioner never lived in H. No.BII/283, Sector6, Rohini, Delhi and that, in fact, one Smt. Asha Sharma (similar name as of petitioner) wife of Sh. Ashok PC16/07 Page 4/21 Sharma was the owner of flat H. No.BII/283, Sector6, Rohini, Delhi and said Smt. Asha Sharma w/o Ashok Sharma was the sisterinlaw (Nanad) of the petitioner and because of similarity in the names of the petitioner as also of the said Nanad, the petitioner wanted to take undue advantage out of it. Respondents have then alleged that after receiving the copy of the alleged Will of the deceased, it was submitted alongwith letter dated 27.9.2006 of the respondent No.2 with Central Bank of India, where the deceased was employed, for the purpose of verification of the signatures of the testator of 'the subject Will' and the bank officials certified on the basis of the bank record that the signatures of 'the deceased' did not match with the signatures on 'the subject Will'. Copies of the said letter, Will as also photocopies of the attendance register of Central Bank of India, Income Tax Return, and copy of application for obtention of Unit Linked Insurance Plan etc., the respondents have annexed with the written statement. It is also averred that the marriage of respondent No.2 Vishal Sharma was performed on 23.4.2000 and the Shagan and ring ceremony performed on 19.1.2000, which is immediately after the date of alleged forged Will dated 14.12.99, was arranged by the deceased with great pomp and show and if, the relations between the deceased and the PC16/07 Page 5/21 respondents were not cordial at that point of time, the deceased would not have so arranged the marriage of his sonrespondent No.2. Respondents have also averred that after the death of the wife of the deceased, the deceased has changed the nomination in favour of his sons i.e. the respondent Nos. 2 to 4 and filled the nomination form on 15.8.2004. Respondent Nos. 2 to 4 have so alleged that the Will was a forged and fabricated document.
4. In the rejoinder filed, the petitioner denying the allegations and the assertions made in the written statement/objections, save and except the admissions made therein, reiterated the averments made in the petition.
5. On the pleadings of the parties, the following issues were framed :
(i) Whether the Will dated 14.12.99 propounded by the petitioner is the duly executed last and final testament of Shri Narender Kumar Sharma in sound disposing mind? OPP.
PC16/07 Page 6/21
(ii) Relief.
6. In support of her case, petitioner examined PW1 Sh. Kamal Sharma; PW2 Sh. Sunil Kumar Saini; PW3 Smt. Asha Sharma; and PW4 Shri Jeet Singh and closed PE. PW1, who is the husband of the petitioner, deposed that the testator was his real brotherinlaw i.e. husband of sister namely Usha Sharma and that, 'the deceased' had executed Will dated 14.12.99 Ex.PW1/1 and signed at pt.A in his presence, after reading the same. PW1 also deposed that he had also signed the Will Ex.PW1/1 in the presence of other attesting witness Sh. Sunil Kumar Saini at Pt. B. He also deposed that the testator expired in January 2006 and that, he knew the contents of the Will Ex.PW1/1, as testator had dictated the Will in his presence and that, the other attesting witness Sh. Sunil Kumar Saini also signed in his presence at pt. C. He also deposed that they all three, signed the Will in the presence of each other outside the office of Subregistrar, Pitam Pura. PW2 deposed that the testator was his friend and that, he stayed in the vicinity of his friend and thus, they were regularly visiting each other. That, one day in December, 1999, the testator gave him a ring and asked him to be present in the office of SubRegistrar, Pitam Pura and that, he had executed a Will in December, 1999 and signed the PC16/07 Page 7/21 same at pt.A and the same was already Ex.PW1/1. He then also deposed that the testator had signed the Will Ex.PW1/1 in his presence after reading the same and he had also signed the Will Ex.PW1/1 in his presence as well as in the presence of the other witness Sh. Kamal Sharma at pt.C and that, the testator expired in January, 2006. He then also deposed that he knew the contents of the Will Ex.PW1/1 as he had dictated the Will in his presence and that, the other attesting witness Kamal Sharma had also signed in his presence at pt. B. He also deposed that they all three, signed the Will in the presence of each other outside the office of Subregistrar, Pitam Pura. PW2 as such, is the other attesting witness to the Will Ex.PW1/1. PW3petitioner deposed that the testator was the husband of older sister of my husband and was ordinarily residing at Kashipur and that, was working in Central Bank of India, Kashipur. She also deposed that the testator came to her house in December 1999 and handed over his Will Ex.PW1/1 and that, as and when he used to come to Delhi, he used to stay with her. She also deposed that the testator was quite ill and since his wife had predeceased him, he had come to them for medical treatment and remained in hospital for 1520 days and ultimately succumbed to his ailment in AIIMS and his death certificate was PC16/07 Page 8/21 Ex.PW3/1 and that, 'the deceased' had left behind three sons, who were respondent Nos. 2 to 4. She also deposed that she knew about the contents of the Will, which had been explained by 'the deceased' to her in December, 1999. PW4, who was an official witness from DDA, deposed for Shri Narendra Kumar Shama having applied for registration under New Pattern Housing Registration Scheme, 1979 vide application No. 1711 dated 4.7.1979 and proved the copy of the said application being Ex.PW4/1. He also deposed that DDA had alloted MIG flat No.105, PocketA, Sector17, Dwarka, PhaseII, New Delhi in the name of Shri Narendra Kumar Sharma vide Final Demand cum Allotment Letter bearing No. 23703 dated 21.4.2003.
7. Respondents in support of their case examined RW1 Shri Vishal Sharma; RW2 Rishi Ballabh Shah; RW3 Shri Mahinder Kumar Sharma; RW4 Ms. Hemlata Sharma; RW5 Pawan Kumar Gupta; and RW6 Shri Avdesh Kumar. Respondent No.2, who appeared as RW1, tendered in evidence his affidavit Ex.R1. He also deposed that he had handed over photocopy of the Will to the Sr. Manager, Central Bank of India alongwith letter dated 27.9.2006, copy whereof, was Ex.RW1/1 and the photocopy of the Will dated 14.12.99 given PC16/07 Page 9/21 alongwith his said letter was markX. He also deposed that he sent another letter dated 20.3.2007 to the Branch Manager, Central Bank of India and the carbon copy of the said letter was Ex.RW1/3 bearing his signatures at pt.A and the other letters sent by him on 22.6.2007 was Ex.RW1/4 bearing his signatures at pt.A and that, letter sent by the Branch Manager dated 28.6.2007 was Ex.RW1/5. That, the photocopy of the nomination form for provident fund alongwith the letter sent by the bank was markY and Y1 and the photocopy of the attendance register was markY2. He also deposed that he could identify the signatures of his father Sh. Narender Kumar Sharma and that, the Central Bank of India had given a memo dated 14.10.1990 to his father, which was Ex.RW1/6 and bearing the signatures of his father at pt. A. He also deposed that his father was assessed to income tax and used to file income tax and that, carbon copy of income tax return for the year 200405, 200304; and 200202 were Exs. RW1/7 to Ex.RW1/9, respectively. That, his father applied for flat of DDA and deposited Rs.13,500 on 13.5.99 and photocopy of the said form was Ex.Z1. That, his father had filed a suit for declaration and mandatory injunction against DDA and the certified copy of the plaint was Ex.RW1/10; certified copy of the application U/o 39 R.1 & 2 was PC16/07 Page 10/21 Ex.RW1/11; the copy of the affidavit was Ex.RW1/12; certified copy of application U/s 151 CPC was Ex.PW1/13; and affidavit of Smt. Neelam Sharma was Ex.RW1/14. RW2, Asstt. Manager, Central Bank of India brought letter dated 5.3.2003 sent by Shri N.K. Sharma, Assistant Manager and deposed that he could identify the signatures of Sh. N.K. Sharma, Asst. Manager and photocopy of the letter dated 5.3.2003 Ex.RW2/1. He also deposed that Shri N.K. Sharma had applied for loan and the copy of the application for loan dated 9.4.87 was Ex.RW2/2 and the same was bearing signatures of Shri N.K. Sharma at pt.A. RW3 deposed that Shri Narinder Kumar Sharma was his younger brother and has been coming to his house and that, he also used to visit the house of Shri Narinder Kumar Sharma. That, to his knowledge, his brother Shri Narinder Kumar Sharma, who died in January2006, had not executed any Will. That, he could not identify signatures of his brother Shri Narinder Kumar Sharma and that, to his knowledge, there was no dispute between Narinder Kumar Sharma with his wife or his children and there was no quarrel between Narinder Kumar Sharma and his wife or children at the time of marriage of his children. That, he could not say regarding the relationship between Narinder Kumar Sharma and his father in law, PC16/07 Page 11/21 mother in law, brother in law and sister in law. He also deposed that his brother Narinder Kumar Sharma was living in a rented house in Delhi at Charkhewalan during his service in Delhi and that, the address of H. No. 18/68, East Moti Bagh, Gali No.3, Sarai Rohilla, Delhi 07 was the residential address of inlaws of Narinder Kumar Sharma and Nareinder Kumar Sharma had been going to the said house. RW4, Assistant Ahlmad brought the record of RCA No.58/2004 titled DDA Vs. Narinder Kumar Sharma and deposed that he could not say, as to whether any appeal was filed against order dated 27.2.2008 passed by Dr. Kamini Lau, Ld. ADJ, Tis Hazari Courts, Delhi. RW5, Ahlmad deposed that he had traced the entire record but the file of Civil Suit No. 169/00 was not pending in the Court of Shri Ajay Pandey, Civil Judge, Delhi. RW6, Income Tax Inspector brought the income tax returns filed by Sh. Narender Kumar Sharma for the assessment year 200203 and deposed that the copy of the Saral form was Ex.RW1/9 and the same was true copy. He then deposed that he had not brought the income tax return for the assessment years 200304 and 200405 filed by Shri Narinder Kumar Sharma, as the same were not traceable but deposed that Saral form Ex.RW1/7 and Ex.RW1/8 for the years 200304 and 200405 were bearing the rubber stamp of their office at PC16/07 Page 12/21 pt.A.
8. I have heard the Ld. counsel for the parties and perused the written submissions and the record carefully.
9. My issue wise findings are as under :
ISSUE NO.1 Whether the Will dated 14.12.99 propounded by the petitioner is the duly executed last and final testament of Shri Narender Kumar Sharma in sound disposing mind? OPP.
Petitioner is the propounder of the Will dated 14.12.1999 Ex.PW1/1, purportedly executed by the brotherinlaw (Jeeja) of the husband of the petitioner. According to the petitioner, it was executed by Sh. Narender Kumar Sharma during his lifetime, bequeathing the said flat in favour of the petitioner, out of love and affection. Respondent Nos. 2 to 4 are the sons of 'the deceased'. In the written statement filed, the respondent Nos. 2 to 4 have vehemently disputed the genuineness of the Will by alleging that the subject Will was a forged and fabricated document and that, the petitioner was trying to defraud the respondents and grab their property. In the written PC16/07 Page 13/21 statement, the respondents have also vehemently disputed the signatures on the Will being that of the deceased by specific reference to the signatures of the deceased with Central Bank of India, where he was employed and the diverse correspondence he signed, besides filing nomination forms and other income tax returns and unit linked insurance plant etc. In other words, the respondents disputed the very genuineness of the signatures of the Will being that of the deceased. In the first instance therefore, heavy burden was cast upon the petitioner to prove that the Will Ex.PW1/1 was bearing the signatures of the deceased. Needless to say, the due execution of the Will having been executed in good disposing mind, out of fear and coercion, would arise only thereafter. To establish the factum of the signatures appearing at pt.A on Ex.PW1/1, but for the bald depositions of PW1 and PW2, who purportedly are attesting witnesses, no independent and cogent evidence has come to be led by the petitioner. Undisputedly, 'the deceased' was employed with Central Bank of India. As per Ex.RW1/6, which is a copy of transfer memo issued by Central Bank of India, the deceased was a head cashier with the bank and not an illiterate person. When that was so, the genuineness of the signatures appearing at pt.A on Will Ex.PW1/1 being that of the deceased, could PC16/07 Page 14/21 be established with cogent evidence but for the bald depositions of PW1 and PW2, who claim themselves to be the attesting witnesses to the Will allegedly executed by 'the deceased'. Even the thumb impressions could be so proved, which according to PW1 during cross, were put by 'the deceased'. Petitioner for the reason unexplained has however, chosen to not to adduce such cogent evidence, but for the bald depositions of PW1 and PW2. As said earlier, there was cogent evidence available for proving the signatures of 'the deceased' on the Will. Relevant records of the bank, where the deceased was employed, could be summoned and genuineness of the signatures of 'the deceased' on the Will proved but the petitioner chose not to adduce such cogent evidence. Failure of the petitioner to do so, invites adverse inference. Who are these attesting witnesses? One is the husband of the petitioner and the other, the husband's friend, who, as per the own deposition of the husband, was having friendly terms with his family for the last 1015 years. In other words, said attesting witnesses cannot be said to be the independent attesting witnesses but interested witnesses. Their bald depositions as regards the execution of the Will by 'the deceased', I equally find it difficult to believe for being not only unnatural but also being contradictory. During cross, PC16/07 Page 15/21 while PW1 has categorically deposed that PW2 was his friend since last 1015 years and their families were on visiting terms, PW2, in his examination in chief as also in his cross has however deposed that he was hardly having any family relations with PW1 but for being on visiting terms with PW1 to little extent and that, their families were not on visiting terms. Petitioner PW3, as regards the relations between PW1 and PW2 has then though deposed that PW2 was his friend but then contradicted the deposition of her husband by deposing that PW2 was not on visiting terms to her house. Quite interestingly then, while according to PW1, PW2 was his good friend, according to PW2, PW2's closer friend was 'the deceased'. None of the petitioner's witnesses support each other versions for their interse relations. Their depositions also do not inspire the confidence of the Court to believe that PW1 & PW2 could be the persons, whom the deceased would have naturally expected to be the attesting witnesses to his Will. As to why a person, who undisputedly was having very good relations with his wife and the children, would bequeath his immovable property or any interest therein, in favour of the petitioner with whom he was not closely related, is another suspicious circumstance, which was required to be removed by cogent, satisfactory and sufficient evidence to dispel PC16/07 Page 16/21 suspicion. Petitioner has failed on this score as well. None of PW1 to PW3 during cross, have disputed the fact that the deceased was having good relations with his wife and the sons. When that is so, it is difficult to believe that 'the deceased', who was a head cashier with a nationalized bank, would have preferred a third person over his own wife and the children, to bequeath 'the said flat'. Why would a person having good relations with his own wife and the children, not even mention his own permanent address in the Will but that of the beneficiary only, is also beyond comprehension. There is also nothing on record to show that at the time of execution of the Will, the deceased was residing with the petitioner. Needless to say, neither in the Will Ex.PW1/1 nor in the pleadings or the evidence, any reason muchless good reason has been given for bequeathing of the said flat in favour of the petitioner. In 2009 (1) RCR (Civil) 826 Bharpur Singh & Ors. Vs. Shamsher Singh, as regards the proof of the Will, Hon'ble Supreme Court reiterated its view taken in AIR 1959 SC 443 H. Venkatachala Iyengar Vs. B.N. Thimmajamma, wherein it was held that the propounder of the Will must prove :
(i) that the Will was signed by the testator in a sound and disposing PC16/07 Page 17/21 state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion.
It was further held :
"20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances.
The alleged signature of the testator may be very shaky and doubtful and evidence in PC16/07 Page 18/21 support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. IN such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded. Such pleas may have to be proved by the caveators; but, even without such pleas PC16/07 Page 19/21 circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
Petitioner, as observed to earlier, I find has miserably failed to discharge his initial onus to remove the legitimate doubts in the due execution of the Will by 'the deceased'. Genuineness of the signatures on the Will Ex.PW1/1 at pt.A being that of 'the deceased', the petitioner has miserably failed to prove. Oral depositions of PW1 and PW2 that the signatures appearing on the Will are that of 'the deceased' are also shaken by the fact that the respondent Nos. 2 to 4 have proved on record various documents viz. transfer memo Ex.RW1/6 and income tax return form Ex.RW1/7 bearing the signatures of the deceased at pts. A and X respectively, which are not challenged during cross. Said signatures are at much variance with the signatures appearing at pt. A on the Will Ex.PW1/1. I also do not see the similarly in the signatures appearing at pt.A on the Will Ex.PW1/1 and the undisputed signatures appearing on the specimen signatures with DDA vide Ex.PW3/R3 and the signatures appearing on the other PC16/07 Page 20/21 correspondence exchanged by the deceased with DDA vide letters Ex.PW3/R1 and Ex.PW3/R2. It was so observed to, by Dr. Kamini Lau, Ld. ADJ13 (Central), when the said Court dismissed the suit for declaration and perpetual injunction filed by the petitioner against the DDA and respondent Nos. 2 to 4. I am therefore, of the considered view that the petitioner has miserably failed to prove the issue in hand. Issue in hand is therefore, answered in the negative.
RELIEF:
In view of the foregoing, petition is dismissed.
Announced in the open Court (A.K. Chawla)
th
on 16 day of July, 2011 District Judge(N)/Delhi
PC16/07 Page 21/21