Delhi District Court
Amitabh Naryan vs State on 8 March, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 73/10/08
New P.C. No.15899/16
Amitabh Naryan
S/o Late Sh. Kanwal Naryan,
R/o 44, Darya Ganj,
New Delhi- 110002
..........Petitioner
Vs.
1 State
2 Shri Ashwal Vaderaa
S/o Late Shri Balraj Vaderaa,
R/o B-6, Chirag Enclave,
New Delhi- 110048
3 Shri Asheesh Vaderaa,
S/o Late Shri Balraj Vaderra,
R/o E-2/19, DLF Phase-1,
Gurgaon ( Haryana)
4 Shri Kanishka Vaderaa,
S/o Late Shri Balraj Vaderaa,
R/o E-25, N.D.S.E., Part-II,
New Delhi- 110049
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 1/62
5 Smt. Monika Vaderra,
W/o Shri Asheesh Vaderra,
R/o E-2/19, DLF Phase-1,
Gurgaon ( Haryana)
6 Smt. Meetinder Vaderaa,
W/o Shri Kanishka Vaderaa,
R/o E-25, N.D.S.E., Part-II,
New Delhi- 110049
......Respondents
Date of institution of the case : 26.04.2008
Date reserved for judgment on : 17.02.2018
Date of pronouncement of judgment: 08.03.2018
JUDGMENT:
1 A petition under Section 276 of the Indian Succession Act, 1925 (Act XXXIX of 1925) for grant of Probate/Letter of administration of the Will dated 5 th February 2003 of Late Smt. Karuna Raj Vaderaa wife of late Shri Balraj Vaderaa has been filed.
2 In brief the facts are that Smt. Karuna Raj Vaderaa wife of late Balraj Vaderaa (hereinafter referred to as "deceased" ) was permanently residing at E-24, N.D.S.E. Part-II, New Delhi- 110049, expired on 24.04.2007 at New Delhi at her residence.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 2/62 3 It is stated that deceased executed her last Will dated 05.02.2003. The Will dated 05.02.2003 was registered in the office of Sub-Registrar-III as document no. 539 in Addl. Book No. III, Volume No. 1216 on pages 187 to 199 on 05.02.2003. The husband of the deceased/Testatrix predeceased the Testatrix and expired on 18.07.1995. The parents of the Testatrix had also pre- deceased the Testatrix.
4 It is stated that the subject matter of this petition are as per Annexure P-1 is the movable and immovable property left behind by the deceased i.e premises bearing no. E-24, NDSE, Part-II, New Delhi 110049 and co-ownership rights in lands at Lado Sarain at 5-A, Mehrauli Road, New Delhi namely Khasra No. 679/672/48/1 measuring 4 Bighas and 16 Biswas and Khasra No. 679/672/48/2 measuring 15 Biswas. In respect of property situated at Vaderaa Farms, Station Road, Garhi, Haryana Gurgaon, a suit for declaration and permanent injunction is pending in the court of Civil Judge, Gurgaon. At this stage it is only a claim in respect of the above property. However, in the event of declaration being granted the deceased would get one fourth undivided share in the above property.
5 It is stated that at the time of her death, the deceased left behind the following legal representatives:-
1. Shri Ashwal Son Vaderaa
2. Shri Asheesh Son Vaderaa
3. Shri Kanishka Son Vaderaa PC No. 73/10/08 Amitabh Narayan Vs State & Ors 3/62
4. Smt. Monia Daughter-in-law Vaderaa
5. Smt. Meetinder Daughter-in-law Vaderaa Petitioner seeks for grant of Probate of the Will dated 05.02.2003 executed by the deceased late Smt. Karuna Raj Vaderaa.
6 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Hindustan Times " dated 05.08.2005.
7 The valuation report in respect of immovable property was called from the concerned SDM/Tehsildar accordingly, Tehsildar/AC-II(Defence Colony) filed valuation report in respect of property bearing No. E-24, Main Market, South Extn.-II, New Delhi and assessed the value of the same as Rs.
5,26,84,720/-.
8 It is pertinent to mention here that respondent no. 3 Shri Asheesh Vaderaa filed written statement containing No Objection in favour of the petitioner.
9 Respondent no. 2 Shri Ashwal Vaderaa filed objections to the petition and taken preliminary objection that the present petition is not maintainable as there is no Will ever executed by the deceased and the alleged will dated 5.2.2003 purported to have been executed by the deceased is a forged PC No. 73/10/08 Amitabh Narayan Vs State & Ors 4/62 and fabricated document and not genuine and the present petition is based upon a forged document and liable to be dismissed.
10 On merit all the contents of the petition are denied and it is stated that the deceased was in the hospital on 05.02.2003 and was un-conscious and was under the influence of various drugs administered to her and during the period of her hospitalization, the deceased was never in sound and disposing state. It is stated that 05.02.2003 the deceased was hospitalized and was not in a position to execute a will as the deceased was not in a position to understand and was not in sound and disposing mind and was not physical fit to execute any document.
11 It is stated that even otherwise it is unbelievable that the deceased shall make a will bequeathing her property to Asheesh Vaderaa, with whom she had civil and criminal litigations filed through Shri Kanwal Narain, advocate, father of the petitioner, with whom the petitioner has been practicing law.
12 It is stated that Shri Asheesh Vaderaa filed a suit No. 110/87 titled "Asheesh Vaderaa Vs Smt. Karuna Raj Vaderaa"
besides complaints to the police. Shri Asheesh Vadera contested all litigations against her mother deceased Smt. Karuna Raj Vaderaa. Even other litigation which was stated in 1974 at Delhi and Calcutta by the father of the objector and the husband of the deceased, whereby Shri Balraj Vaderaa, husband of the deceased put pressure on the family to accept his secretary, a Chinese, woman, which was decided on May, 29th, 1981. The father of the PC No. 73/10/08 Amitabh Narayan Vs State & Ors 5/62 objector obtained ex-parte injunction order against the deceased, his sons. The family was in turmoil not knowing whether there would be roof over their heads or not.
13 It is stated that objector fought the litigations brought by the father and also fought the litigations filed by Asheesh Vaderaa. It is highly improbable that deceased shall execute a will in favour of the person who had filed civil and criminal litigations against her.
14 It is stated that the petitioner, who is an advocate by profession, is the son of Shri Kanwal Narayan advocate who was prosecuting against her, as her executor. There appears some fraud as the petitioner/executor and his father Shri Kanwal Narayan advocate had a loyalty in favour of Shri Asheesh Vadera and against the deceased. The present will has been fabricated to meet the previous settlement executed on 14.04.1988.
15 It is stated that will does not disclose any reason for unequal/unfair/undivided distribution given in the will. There can never be the desire of the deceased to execute any such Will for the benefit of one person who had humiliated her. Respondent no. 2 seeks order in his favour and against the petitioner.
16 Petitioner filed reply to the written statement of respondent no. 2 and reiterated the contents of his petition and denied the averments mentioned in the written statement. It is stated that Shri Asheesh Vaderaa has been bequeathed very little property. The majority of the property at E-24, NDSE, Part II, New Delhi has been bequeathed to the children of Shri Kanishka PC No. 73/10/08 Amitabh Narayan Vs State & Ors 6/62 Vaderaa who are to take as absolute owners after the interest of limited owners is extinguished.
17 It is stated that Asheesh Vadera had not filed any litigation against his mother per se. Shri Asheesh Vadera had only filed a petition for removal of an arbitrator under Section 11 of the Arbitration Act, 1940. In the said petition Smt. Karuna Raj Vadera was only a proforma party. The relief was against the arbitrator, Shri Krishan Sayal for his removal.
18 It is stated that petitioner has been a family lawyer for the family. The petitioner was the counsel for Smt. Simrat Katyal wife of the objector. The petitioner as a counsel also appeared for Karuna Raj Vadera and others in the case " Karuna Raj Vadera Vs Gavicee and others." A family arrangement was arrived at between the parties and the litigations was resolved. The litigation culminated in a compromise order dated 15.04.1988. There was no litigation let. Shri Asheesh Vadera has been bequeathed only a portion of 5 feet by 15 feet of roof of the second floor adjacent to Vichitra Sarees. It is stated that deceased/testatrix was in sound disposing mind and mentally alert on 05.02.2003 at the time of executing the Will.
19 It is stated that in view of the objector stands disinherited in view of clause 11 of the Will dated 05.02.2003. The property and assets bequeathed to the objector now stand vested with Karuna Raj Vadera Charitable Trust. The petitioner denied all the contents of the objections filed by respondent no. 2 PC No. 73/10/08 Amitabh Narayan Vs State & Ors 7/62 20 Respondent No. 4 Shri Kanishka Vaderaa and Smt. Monica Vaderaa also filed reply/written statement and admitted the contents and contentions of the petition and given his No objection for grant of probate of the will executed by his mother dated 05.02.2003.
21 On the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 09.09.2009:-
1. Whether late Smt. Karuna Raj Vadra duly executed Will dated 05.02.2003 in her sound disposing mind? OPP
2. Whether petitioner being executor of Will dated 05.02.2003 of Smt. Karuna Raj Vadera is entitled for grant of Probate as claimed? OPP
3. Relief
22 It is pertinent to mention here that petitioner made a statement in the court on 05.02.2010 that he has not to examine himself and any other witness except Sh. Mukul Bhatnagar and Dr. Vinod Rai witnesses of the Will. Accordingly, petitioner examined Dr. Vinod Rai as PW-1 and Sh. Mukul Bhatnagar examined as PW-2. As per statement of Ld. Counsel Sh. Suraj Prakash, of petitioner, evidence on behalf of petitioner was closed vide order dated 24.11.2012.
23 Ms Monika Vaderra, non-objector, respondent no. 5 examined Sh. S.K. Sharma, LDC from the office of Sub-Registrar Office as R5W1. Thereafter the main contesting respondent, no. 2 Sh. Ashwal Vaderaa examined himself as OW-1, OW-2 Sh. Anil PC No. 73/10/08 Amitabh Narayan Vs State & Ors 8/62 Dhawan, OW-3 Sh. Virender Singh, Income Tax Inspector, OW-4 Sh. Sushil Kumar Kala, who brought the original file of OMP No. 110 of 1987 from Hon'ble High Court and OW-5 Sh. Digamber Singh. As per statement of Sh. Ramesh Kumar, evidence on behalf of respondent no. 2 was closed on 17.09.2016.
24 It is pertinent to mention there that respondent no. 3 Sh. Asheesh Vaderaa did not lead any evidence, however, he had approached the Hon'ble High Court by way of CM (M) 908/2016 before the Hon'ble court whereby he challenged the order of this court dated 02.07.2016 and as per order of Mr. Justice Jayant Nath, dated 22nd September, 2016, he was allowed to cross- examine respondent no. 2, OW-1 Sh. Ashwal Vaderaa. Thereafter an application also filed by respondent no. 3 Sh. Asheesh Vaderaa to call Dr. (Col.) S.K. Thakur from Mool Chand Hospital. The said application was allowed vide order dated 31.01.2017, accordingly Dr. (Col.) S.K Thakur was examined as CW-1 on 30.03.2017.
25 I have heard Sh. A.K. Sengupta and Sh. Suraj Prakash, counsel for the petitioner, Sh. Ramesh Kumar, counsel for respondent no. 2, Sh. Ashwal Vaderaa and Shri Ravikesh Sinha, counsel for respondent no. 3 & 5. My findings on issues is as under:-
Issue no. 1 & 2 Issue no. 1 & 2 are taken simultaneously being inter connected.
26 In order to decide the above issue, let us peruse the provisions and principles of law laid down by the Apex Court.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 9/62 The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make PC No. 73/10/08 Amitabh Narayan Vs State & Ors 10/62 a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
20. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
21. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that PC No. 73/10/08 Amitabh Narayan Vs State & Ors 11/62 affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
22. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
68. Proof of execution of document required by law to be attested.--- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 12/62 27 The judgment of the Supreme Court in the case reported as H. Venkatachala Iyangar Vs. B.N. Thimmajamma, AIR 1959 SC 443, is one of the early and celebrated judgments on the subject. After construing, amongst others, the above statutory clauses, the court ruled thus:-
"18... the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19.... there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 13/62 Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
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 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 PC No. 73/10/08 Amitabh Narayan Vs State & Ors 14/62 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 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."
( emphasis supplied) 28 In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to PC No. 73/10/08 Amitabh Narayan Vs State & Ors 15/62 discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court.
The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
( emphasis supplied) 29 In Jaswant Kaur Vs Amrit Kaur, (1977) 1 SCC 369, after analyzing the ratio in H. Venkatachala Iyangar (supra), the Supreme Court culled out the following PC No. 73/10/08 Amitabh Narayan Vs State & Ors 16/62 propositions:-
"(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. And subject to the process of the court and capable of giving evidence.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
This aspect introduces an element of solemnity in the decision of the question whether the document propounded is prsoved to be the last will and testament of the testator. Normally , the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the PC No. 73/10/08 Amitabh Narayan Vs State & Ors 17/62 making of the will under which he receives a susbtantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circusmtances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all ligitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is connection with wills, the execution of which
is surrounded by suspicious circumstances that the
test of satisfaction of the judicial conscience has
been evolved. That test emphasises that in
determining the question as to whether an
instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the PC No. 73/10/08 Amitabh Narayan Vs State & Ors 18/62 absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
( emphasis supplied) 30 The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar PC No. 73/10/08 Amitabh Narayan Vs State & Ors 19/62 [1995 Supp (2) SCC 664] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied) 31 Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that "(A)ny person of ordinary prudence would have adopted the same course and would not have given PC No. 73/10/08 Amitabh Narayan Vs State & Ors 20/62 anything to the ungrateful children from his/her share in the property."
32 In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied) 33 In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the PC No. 73/10/08 Amitabh Narayan Vs State & Ors 21/62 evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules-
(a) The testatrix shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testatrix, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testatrix sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix a personal acknowledgment of his signature or mark, or the signature of such other PC No. 73/10/08 Amitabh Narayan Vs State & Ors 22/62 person; and each of the witnesses shall sign the will in the presence of the testatrix, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
20.2 Section 68 & 71 of the 1872 Act:
68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal PC No. 73/10/08 Amitabh Narayan Vs State & Ors 23/62 acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a PC No. 73/10/08 Amitabh Narayan Vs State & Ors 24/62 document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence. 22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
34 Ld. Counsels for petitioner Sh. Suraj Prakash and Sh. A.K. Sengupta submitted that petitioner being executor, examined the two attesting witnesses to the Will Dr. Vinod Rai as PW-1 and Mr. Mukul Bhatnagar as PW-2 and both the witnesses are in their respective deposition established beyond reasonable doubt that they were the attesting witnesses to the Will in question and will was executed/signed by the testatrix at the Mool Chand Hospital on 05.02.2013 in their presence; that the testatrix affixed her thumb impression on each page of the Will; both of them signed the will as attesting witnesses in the PC No. 73/10/08 Amitabh Narayan Vs State & Ors 25/62 presence of the testatrix and each other as well as the Sub- Registrar. The witnessed also identified their signatures, thumb impression of testatrix and her signatures on the Will.
35 It is submitted that in order to corroborate this fact, respondent no. 5, Smt. Monika Vaderaa examined R5W1, Mr. S.K. Sharma, LDC from the office of Sub-Registrar-III, Asaf Ali Road who produced the record in respect of registration of the Will and exhibited the certified copy as Ex. R5W1/A. 36 It is submitted that objector, Sh. Ashval Vaderaa initially submitted a list of 18 witnesses which was increased to 21 and then finally reduced to 9 witnesses. In the list of witnesses, surprisingly, the name of Dr. Col. S.K. Thakur, the most relevant witness, who was Doctor at the time of admission of the testatrix at Mool Chand Hospital, was not mentioned. However, the said Doctor was subsequently examined at the request of Sh. Asheesh Vaderaa, respondent no. 3.
37 It is submitted that Sh. Ashwal Vaderaa, objector, examined himself as OW-1, his cousin, Shri Anil Dhawan as OW-2, Shri Virender Singh, official from Income Tax Inspector as OW-3 and Shri Sushil Kumar Kala, official from High Court as OW-4 who produced the record.
38 It is submitted that objector, Sh. Ashwal Vaderaa leveled several frivolous and baseless allegations in his affidavit. He alleged that testatrix had operated for uterus cancer in 1997 and thereafter she developed breathing problem, hypertension, PSVT, IHD-CAD and adheslons in the intestine causing her pain, PC No. 73/10/08 Amitabh Narayan Vs State & Ors 26/62 discomfort and heart beat fluctuations due to which she often required hospitalization and since 1996 onwards admitted many a times in Batra Hospital, Mool Chand Hospital and Ganga Ram Hospital till she died on 24.04.2007.
39 It is further submitted that testatrix had admitted to Mool Chand Hospital on 31.01.2003 because of recurrent vomiting and for not passing stool for two days and suffering from sub-acute intestinal obstruction ( SAIO). She was discharged on 07.02.2003 but re-admitted to Ganga Ram Hospital as per discharge summary.
40 It is further submitted that as per objector because of the drugs, testatrix was not physically and mentally fit and was not in a position to understand things on 05.02.2003 what to talk about the 12 page complicated Will in question. The objector further alleged that will in question is forged and fabricated document and not executed by testatrix nor does it bears the signatures of testatrix. The Will does not disclose any reason for unequal/unfair/undivided distribution given in the will. There was no desire of testatrix to execute any such will in the favour of one person who had humiliated her during her life time. The language of the Will is unfair, unequal and the dispositions are unnatural.
41 It is submitted that due process for registration of a Will at hospital was not duly adhered to. The testatrix had good relations with the objector and had reposed her implicit trust in the objector, who had been appearing on her behalf in court in her various litigations against her. He was also authorised of the business of the testatrix under the name and style of "M/s Kunj & PC No. 73/10/08 Amitabh Narayan Vs State & Ors 27/62 Co." in the Bank of Rajasthan and the also nominee in the said bank account. The objector also referred to civil suit filed in the Saket Court on 15.11.2010 and also referred to a family settlement dated 14.04.1988.
42 Thereafter ld. Counsel for the petitioner referred to the detailed cross-examination of OW-1 Sh. Ashwal Vaderaa and pointed out that he gain the knowledge of medicines from the Book of Harrison's Principles of Internal Medicine on which bases he has made all the allegations about the mental and physical health of the deceased/testatrix. He has not produced documents during the cross-examination.
43 Ld. Counsel for the petitioner further submitted that objector during the pendency of the petition made several RTI applications to ascertain procedure for registration of a Will in a hospital. The conduct of the objector leads to two inferences- firstly that he knew that the Will was actually executed and registered by testatrix and, therefore, he did not enquire about the same in the Sub-Registrar office and secondly that he obtained this information from the Sub-Registrar concerned and withholding the same being un-favourable to him.
44 Ld. Counsel for the petitioner further referred to the evidence of CW-1 Col. Dr. S.K. Thakur and admission of deceased from 31.01.2003 to 07.02.2003. He submitted that as per evidence of CW-1 it is established beyond any shadow of doubt that on 05.02.2003 testatrix was fully conscious and mentally alert.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 28/62 45 He further submitted that the testatrix died on 24.04.2007 and immediately petitioner being executor had served letter dated 08.05.2007 by speed post to all the beneficiaries including the objector, bringing to their notice the fact that petitioner has been appointed as executor of Will and Will has come into operation. The copy of the will was also annexed with the said letter. The objector replied the said letter on 12.06.2007 who alleged that will in question is forged document as testatrix was heavily drugged and not fully conscious etc. However, objector did not take any steps in the matter to ascertain registration of the Will in question from the office of concerned Sub-Registrar but after five years during the pendency of the petition he sought information under RTI.
46 Ld. Counsel for the petitioner further referred to the cross-examination of OW-1 Sh. Ashwal Vaderaa and submitted that objector claimed that he has medical knowledge from "Harrisons Principle of Internal Medicine" however, he is not in a position to say when did he acquire such knowledge. On the contrary the evidence on record has established that he does not know anything about medical science as admitted in the cross- examination. He was not able to spell out when asked about the compositions of the medicines, therefore, the objector failed to establish any knowledge of expertise in the medical field as alleged in the objections.
47 Ld. Counsel for the petitioner further submitted that objector taken a plea of forged and fabrication of the Will in question and does not bear the signatures and thumb impression of deceased testatrix. However, the evidence led by petitioner PC No. 73/10/08 Amitabh Narayan Vs State & Ors 29/62 would establish beyond any doubt that the Will in question was signed by the testatrix on 05.02.2003 in her sound disposing state of mind. She understood the nature and effect of dispositions made and she had put her signatures and thumb impressions to the testament of her own free will and she had signed in the presence of two attesting witnesses who attested in her presence and in the presence of each other. These facts are established and corroborated by two attesting witnesses PW-1 Dr. Vinod Rai and PW-2 Mr. Mukul Bhatnagar. Ld. Counsel for the petitioner further referred to their detailed cross-examination running in several pages.
48 Ld. Counsel for the petitioner also referred to the testimony of OW-2 Sh. Anil Dhawan on behalf of objector Sh. Ashwal Vaderaa and submitted that it has been established that he was interested witness and very close to Ashwal Vaderaa and his evidence is totally false because he stated the date of execution of the will and visiting of Mool Chand hospital after 12 years. But in the cross-examination he does not remember when his Mammi deceased testatrix expired, when his affidavit was sworn etc. therefore, he is interested and false witness.
49 Ld. Counsel for the petitioner further submitted that Will does not disclose any reason for unequal/unfair/undivided distribution and there was no desire of testatrix to execute any such will in favour of one person who had humiliated her during her life time is absolutely false and not supported by any evidence. On the contrary as per contents of the Will in question Asheesh Vaderaa, respondent no. 3 has been bequeathed very little property and the major and substantial share of the PC No. 73/10/08 Amitabh Narayan Vs State & Ors 30/62 property situated at Ex-24, N.D.S.E, Part-II has been bequeathed to the children of Shri Kanishka Vaderaa, respondent no. 4 and vest in them as absolute owners. The land situated at Lado Sarai at Mehrauli Road has been bequeathed in favour of objector Ashwal Vaderaa thus the will in question distributes properties to all the sons/grandchildren of the testatrix apart from Karuna Raj Vaderaa Charitable Trust.
50 It is stated that there is no law provides that a Will must disclose reasons for unequal/unfair/undivided distribution of assets and it is absolute choice and prerogative of the testator whom he intends to bequeath his properties. It is further submitted that no material/evidence is on record to suggestion, even remotely, that due procedure for registration of the Will in question in Mool Chand Hospital was not followed. On the contrary, it has been proved beyond doubt that the Will was executed by the testatrix at Mool Chand hospital on 05.02.2003 and registered and certified copy thereof produced by RW51 Sh. S.K. Sharma. The executor/petitioner is not involved in any manner in execution and registration of the Will in question.
51 Ld. Counsel for the petitioner further drawn attention at the conduct of the objector in operating the bank account of the testatrix even after her death and withdrawing huge money from the said bank account and objector has breached the trust reposed by the testatrix in him. It is stated that Sh. Ashwal Vaderaa, respondent no. 3 has filed a petition for removal of an arbitrator under Section 11 of the Arbitration Act 1940. The petitioner/executor had been a family lawyer for the family and also conducted the case titled " Smt. Simrat Katyal Vs Union PC No. 73/10/08 Amitabh Narayan Vs State & Ors 31/62 Bank of India and Another". Petitioner also appeared for the judgment debtors and resisted the execution petition titled "Syndicate Bank Vs Demen and Ash and Others", similarly on behalf of testatrix and others in the case of " Karuna Raj Vaderaa Vs Gavicee and others".
52 It is further submitted that objector has tried to mislead this court and bare perusal of clause "R" of the Family Settlement dated 14.04.1988 would show that testatrix was fully competent to give any further property to R-3, Shri Asheesh Vaderaa by way of validly executed Will. Moreover the property given to respondent no. 3 under the said Family Settlement has been disclosed in the Will and it has been specifically mentioned that the said beneficiary in addition to the property given to him under the Family Settlement shall also be entitled to a small portion of property i.e 75 square feet as bequeathed to him under the Will.
53 It is further submitted that objector took undue advantage of operating the bank account of the testatrix and admitted in the cross-examination on 14.05.2016. There is no system of nomination facility in a current bank account as alleged by the objector Ashwal Vaderaa.
54 Ld. Counsel for the petitioner submitted that in the instant case no suspicious circumstances, far less well-founded suspicious has been created from the testimony of any witness about the execution of the Will by the testatrix and registration thereof nor is there anything unnatural. All the requirements of Section 63 of the Indian Succession Act have been duly satisfied PC No. 73/10/08 Amitabh Narayan Vs State & Ors 32/62 in execution of the Will in question and same are proved on record by evidence as per requirement of Section 68 of Indian Succession Act and petitioner being the executor of the Will in question is entitled for grant of Probate.
55 Sh. Ravikesh Kumar Sinha, ld. Counsel for respondent no. 3 & 5, namely, Sh. Asheesh Vaderaa and Mrs Monika Vaderaa that the objector Sh. Ashwal Vaderaa has taken the objection that deceased testatrix was not in sound disposing mind to execute the Will in question. He referred to the objections filed wherein pointed out that Sh. Ashwal Vaderaa, objector admitted the fact that deceased testator was admitted in Mool Chand hospital on 31.01.2003 because of recurrent vomiting and for not passing stool for 2 days and suffering Sub-Acute Intestinal Obstructions (SAIO). The treating doctor, Dr. S.K. Thakur examined by the court as CW-1. Ld. Counsel for the respondent no. 3 & 5 referred to the testimony and emphasis on the medical fitness certificate Ex. CW-1/1. He referred to the deposition with regard to the alertness and consciousness of the deceased testatrix during the treatment.
56 He submitted that on the basis of testimony of CW-1 Dr. S.K. Thakur, it is pointed out on record that deceased testatrix from 31.01.2003 to 07.02.2003 was conscious alert and never shifted to ICU. He further referred to the discharge summary Ex. OW1/5 which also corroborated this fact that deceased testatrix was conscious, oriented and a febrile. He submitted that the objections has not been established on record with regard to not sound disposing mind of deceased testatrix as alleged by the objector.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 33/62 57 Ld. Counsel submitted that another objection taken that the Will in question is forged and fabricated because in various paras of the affidavit and he referred para 19 to 29. Ld. Counsel referred that respondent no. 3 during the trial file an application for seeking inquiry regarding the signatures and thumb impression of deceased testatrix by an expert to demonstrate that the stand and the objection taken by the objector was frivolous and with ulterior purposes. However, objector Ashwal filed objections to the said application by way of reply dated 02.07.2016. He further submitted the objector was aware about the genuineness of the signatures of his mother on the Will, therefore, he opposed the application for appointment of handwriting expert.
58 He further pointed out that the objector immediately after the death of deceased testatrix withdrawn huge amount of money from the bank account of M/s Kunj & Co. which was to go to the Charitable Trust which was earmarked for the purpose of the destitute children. He referred to the order dated 29.09.2008 whereby the account of M/s Kunj & Co. was freezed. He also referred to the family settlement in OMP No. 110 of 1987 and submitted that respondent no. 3 Sh. Asheesh Vaderaa had relinquished all his share of inheritance of the property of the testatrix in the said family settlement. He further read out the contents of the Will Ex. PW-1/A whereby respondent no. 3 Sh. Asheesh Vaderaa has not got anything under said Will other than a portion of 5 ft by 15 ft. of the roof of the second floor adjacent to Vichitra Sarees in property R-24, NDSE Part-II New Delhi.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 34/62 59 He further submitted that language of the Will is fully coherent and sounds logic and maximum benefits under the said Will has been given to the objector or the younger son Mr. Kanishka Vaderaa. He further referred that prior to the Will in question deceased testatrix has executed the Will dated 22.11.1997, 25.11.1997, 12.12.1997 and registered Will 07.10.2002. The Will was executed and registered about four years prior to her death.
60 Ld. Counsel for respondent no. 3 & 5 further submitted that respondent no. 5 Ms Monika Vaderaa had summoned the competent person from Sub-Registrar-III, Asaf Ali Road to prove the registration record of the Will in question as per order of this court on 01.11.2013. He highlighted that the objector had challenged the said order before the Hon'ble High Court but same was dismissed as not pressed vide order dated 18.11.2014. He referred to the testimony of R5W1 Sh. S.K. Sharma and submitted that he has proved the fact with regard to the registration of the Will. He read out the back page of the Will where it is clearly mentioned that execution and registration of the Will Ex. Was taken place at Mool Chand Hospital. He submitted that the Will has been proved beyond doubt and objects are false and frivolous, therefore probate petition deserves to be allowed. He relied on judgment of Leela Rajagopal Vs Kamla Menon Cocharan, (2014) 15 SCC 570.
61 Ld. Counsel Sh. Ramesh Kumar, on behalf of objector/ respondent no. 2 Sh. Ashwal Vaderaa submitted that in the petition the executor Amitabh Narayan has concealed the fact that the will in question was executed at Mool Chand Hospital at PC No. 73/10/08 Amitabh Narayan Vs State & Ors 35/62 the filing itself it raises suspicion about the alleged execution and registration of the Will. The petitioner has not pleaded anything with regard to execution and registration of the said Will and mental and physical condition of the deceased testatrix in the petition. The executor being advocate by profession and well aware of the law that perpounder of the will is not only to prove the will but also to remove and dispel all suspicious circumstances surrounding the Will but he stated only that two witnesses to be examined PW-1 Dr. Vinod Rai and PW-2 Sh. Mukul Bhatnagar and did not appear in witness box.
62 The suspicious circumstances arises in the present fact and circumstances is that the reference in the first para of the alleged will about the previous wills dated 12.11.1997, 25.11.1997, 12.12.1997 and 07.10.2002 are not pleaded or deposed by attesting witnesses. It has not brought on record that what prompted the testatrix to write another Will merely six months after the execution of the will dated 07.02.2002 not explained. The alleged will was executed in hospital but it has not been explained what was the imminent danger to the life of testatrix and what was the urgency to execute 12 pages Will, it remain mystery. Further suspicious arises that how complicated 12 page Will and coloured site plan got prepared, who prepared it and when prepared it and who typed it, how many original copies were made who brought it to the hospital are vital aspects are un-explained.
63 It is further submitted that the petitioner failed to produce any evidence for execution and registration of Will which was entered in any record of Mool Chand Hospital. The attesting PC No. 73/10/08 Amitabh Narayan Vs State & Ors 36/62 witnesses did not obtain any gate pass or permission from the hospital authorities. The alleged Will also not mentioned about her illness and hospitalization. He further submitted that procedure of registration of the Will at the place of execution requires two original copies of the Will duly signed by the executant and the witnesses with their photographs and medical certificate of the executant be submitted to Sub-Registrar alongwith written application possibly seven days in advance together with fees @ Rs. 500/- payable by bank draft in addition to payment of traveling expenses for the distance to be covered by the Sub-Registrar or his appointee. But no evidence led on this aspect. There is no time and place of registration have been given in the alleged Will as required by the law, therefore, it raises suspicious circumstances.
64 The procedure for registration of the Will in the hospital not followed, therefore, it is not a valid execution as per well settled procedure. Therefore, it is not a legal and valid will as per provision of Registration Act, 1908. Ld. Counsel pointed out the address of testratix has been mentioned as E-24-25 NDSE-II, New Delhi whereas the will was executed at Mool Chand Hospital. The name and place of hospital and timing of visiting has not been mentioned on the Will. The petitioner failed to explain that who made any application for obtaining permission from the Sub-Registrar for registration of the alleged Will at hospital. It is stated that who and when paid the fees, who scrutinize the documents and to whom time was given by the Sub-Registrar to visit the hospital, nothing has been explained, therefore, the alleged Will is surrounded by suspicious circumstances.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 37/62 65 He further submitted that Dr. S.K. Thakur produced certificate Ex. CW-1/1 which was obtained by whom is not explained. The endorsement on the Will by PW-1 Dr. Vinod Rai is not the usual mode of certification. The original of Ex. CW-1/1 was produced by counsel for Asheesh Vaderaa in the cross- examination of CW-1. However, Dr. S.K. Thakur did not know the purpose of certificate. It is an after though of Asheesh Vaderaa from whose custody Ex. CW-1/1 was produced. It is further submitted that the certificate is forged and fabricated. The witness of respondent no. 5 R5W1, Sh. S.K. Sharma, has not produced any medical certificate from record and he has only produced certified copy of the alleged Will Ex. R5W1/A but where is the original Will is pasted not explained. The certificate Ex. CW- 1/1 has not indicate probable health and mind set of the testatrix for the coming days whereas witness admits that NTG injection due to PSVT which relates to angina pain was given to testatrix. As per discharge summary Ex. OW-1/5 dated 07.02.2003.
66 Ld. Counsel further submitted that as per contents of the Will the benefit given to Smt. Meetinder Vaderaa has been withdrawn in case she gets divorce from Shri Kanishka Vaderaa has not been mentioned. There is no mention of Asheesh Vaderaa's wife Smt. Simret Katyal. The substantial part of estate has been entrusted to M/s Karuna Raj Vaderaa Charitable Trust, however, object of the said trust has not been mentioned. There is no explanation given and there is a total silence on behalf of petitioner as well as Asheesh, the main trustee as per alleged will.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 38/62 67 It is further stated that no steps taken for formation of said trust after the execution of the Will. He further pointed out that a settlement dated 14.04.1998 Ex. OW-1/24 and submitted with to over come this hurdle and impediment, the present alleged Will has been forged and drawn the attention of Para 11 of the Will. The settlement Ex. OW-1/24 dis-inherited Asheesh Vaderaa from entire estate and the relations never improved between Asheesh Vaderaa and deceased testator from 1988 to 2003. But no explanation given why Asheesh Vaderaa is one of the beneficiary.
68 It is further submitted that it is not explained who took the original Will from the office of Sub-Registrar and in whose custody it remained. There are differences in the signatures of the testatrix on each page of the Will which indicates forgery. There is complete variance of signatures in certified copy of the Will produced by the office of Sub-Registrar as Ex. R5W1/1 and Ex. PW-1/A. 69 It is stated that presence of Sh. Jai Narain, Advocate at the hospital on 05.02.2003 has not been explained. The presence of him was not verified by PW-1 and PW-2. There is nothing brought on record who engaged him and who paid remuneration to Sh. Jai Narain Advocate and he was also not examined. Petitioner miserably failed to prove the due execution of the Will merely proving its registration is not the proof of the Will. The version of PW-1 and PW-2 is quite inconsistent and suspicious circumstances has not been cleared at all. The perpounder of the Will has not appeared in the witness box and an adverse inference shall be drawn against the petitioner. The PC No. 73/10/08 Amitabh Narayan Vs State & Ors 39/62 petitioner and the contesting respondents have failed to discharge the burden of proof of both the issues, therefore, failed to prove that the Will dated 05.02.2003 was executed by late Smt. Karuna Raj Vaderaa and that it was her last Will and testament. It is stated that petition is liable to be dismissed.
70 Ld. Counsel Sh. Ramesh Kumar for objector Sh. Asheesh Vaderaa, respondent no. 2 referred cantana of judgments in his written arguments, however during the final arguments he specify three judgments i.e Niranjan Umeshchandra Joshi Vs Mrudula Jyoti Rao, 2006-13-SCC-433 Para17, 34 & 35, Vijay Kumar Banerjee Vs Arun Kumar Chakravarty AIR 2003 All 29 and Desh Raj Gupta Vs State 2010 (119) DRJ 138.
71 I have considered the respective submission, oral and written submissions of all the contesting parties and their counsel and gone through the record.
72 In the present facts and circumstances, first of all, I will take disputed legal and factual matrix as under:
Place of Execution of Will and Procedure I have gone through the Will Ex. PW-1/A dated 05.02.2003. The endorsement on the back page of the first page by SR-III, New Delhi. It has been categorically mentioned that " Testatrix executed and signed the Will on medical ground under Medical Certificate issued by Dr. S.K. Thakur, M.D and her signatures has been taken at hospital". Dr. S.K. Thakur appeared as CW-1 and proved the medical certificate Ex. CW-1/1 dated PC No. 73/10/08 Amitabh Narayan Vs State & Ors 40/62 03.02.2003 and discharge summary of deceased testatrix late Smt. Karuna Raj Vaderaaa Ex. OW-1/5 dated 07.02.2003. He further established and corroborated the facts that deceased testatrix was admitted in Mool Chand Hospital and Will Ex. PW-
1/A was executed at hospital.
73 I would like to refer to the testimony of R5W1, Sh. S.K. Sharma, LDC from Sub-Registrar-III office who proved the certified copy of the Will is Ex. R5W1/A and produced the registration record. During his detailed cross-examination he referred to the endorsement of registration of Will on medical ground as mentioned on the reverse of the first page. Ld. Counsel for the objector/respondent no. 2 Sh. Ashwal Vaderaa did not put any question and suggestion with regard to challenge of place of execution and registration of Will at hospital. The objector Ashwal Vaderaa also not produced any witness or document to challenge the place of execution and registration of the Will Ex. PW-1/A at Mool Chand hospital. Although it is pointed out by the objector that in petition it is not specific mentioned about the place of execution and registration of the Will by the executant, however the original will was filed alongwith petition wherein it is categorically mentioned that will was executed and registered at hospital.
74 It is pertinent to mention that PW-1 Dr. Vinod Rai, the attesting witness in his detailed testimony especially during the cross-examination also proved the fact that he was called by the deceased testator late Karuna Raj Vaderaa on 05.02.2003 at Mool Chand hospital executed the Will. His testimony is further corroborated by PW-2 Sh. Mukul Bhatnagar, the another attesting PC No. 73/10/08 Amitabh Narayan Vs State & Ors 41/62 witness who also called by deceased testatrix at Mool Chand Hospital.
75 In my considered opinion, on the basis of above observation and discussion, it is established that the place of execution and registration of Will was Mool Chand Hospital.
76 Ld. Counsel for the objector, Sh. Ashwal Vaderaa, vehemently argued that no legal procedure adopted for registration of the Will at Mool Chand hospital. He has high lighted the provision of Section, 31, 34, 38, 52, 58 & 78 of Registration Act read with Rule 50 Vol. II Manual of the Inspector General of Registration 1976. As per record the petitioner has not brought the documentary evidence with regard to various steps taken for registration of the Will at Mool Chand Hospital. However, the attesting witness PW-1 Dr. Vinod Rai and PW-2 Sh. Mukul Bhatnagar in their detailed cross-examination explained the presence of two other persons with legal background. They also define the role played by them at the time of registration of the Will at hospital. However, Dr. Vinod Rai did not explain the role as he was not remembered. However, he categorically stated that legal persons present at the time of execution of the Will was Sub-Registrar officials.
77 PW-1 Dr. Vinod Rai to a specific question answered that Sub-Registrar affixed the signature on Will on that day I was not watching while he was signing although I was present. PW-2 Sh. Mukul Bhatnagar also corroborated the fact of presence of officials of from Sub-Registrar and lawyers and they were carrying formalities with regard to the execution of the Will. He PC No. 73/10/08 Amitabh Narayan Vs State & Ors 42/62 further explained that the thumb impression of Mrs Karuna Raj Vaderaa, deceased testatrix and other witnesses Dr. Vinod Rai and Mrs suri were also taken at the back side of the Will. However, he was not able to recollect completely. He specifically answered that during the period from 2.30 P.M to 2.45 P.M officials of the Sub-Registrar office were present in the room but he is not able to recollect what they were doing. He was also not able to recollect whether the officials of Sub-Registrar has written anything else or not.
78 There is no evidence brought on record about the fact that how the Sub-Registrar's officials was approached and registration of Will had taken place at Mool Chand hospital on 05.02.2003. The objector Ashwal Vaderaa also made efforts by filing several RTI to different Sub-Registrar offices, however, objector failed to brought any material on record to establish that there are grass illegality and irregularity of legal provision which effect the legal, execution and registration of the Will at hospital brought on record.
79 The arguments raised by counsel for objector/respondent no. 2 only refers to the absence of any document when and how the application was made and why Sub- Registrar officials came at hospital is mere procedural irregularity and grass illegality. Therefore, if there is a slight diversion from the Rule book procedure for registration of the Will at hospital it will not affect the basic essence of the legality of the registration of the Will at the hospital. The record from the Sub-Registrar proved as well as both the attesting witnesses explained all the circumstances and the present of Sub-Registrar's officials at the PC No. 73/10/08 Amitabh Narayan Vs State & Ors 43/62 time to execution and registration of the Will at Mool Chand Hospital. In my considered opinion the procedural aspect as high lighted by objector do not establish suspicious circumstances and also not effect the legality of the registration of the Will Ex. PW- 1/A at Mool Chand Hospital.
Mental and physical condition of deceased testatrix of late Karuna Raj Vaderaa on 05.02.2003.
80 It is pertinent to mention here that objector Ashwal Vaderaa when appeared in witness box proved and relied on medical record Ex. OW-5/1, Ex. OW-1/6 investigation result, Ex. OW-1/7, Discharge summary dated 14.02.2003, Ex. OW-1/8 Hospital documents, Ex. OW-1/9, Discharge summary dated 06.01.2003, Ex. OW-1/10 Discharge Summary dated 27.12.97, Ex. OW-1/11 Discharge Summary dated 06.08.2003, Ex. OW1/13 Discharge Summary dated 09.03.2007, Ex. OW-1/15 Discharge Summary dated 16.05.2005, Ex. OW-1/16 Discharge Summary dated 30.04.1998. However, the most vital medical record is Discharge Summary Ex. OW-1/5 dated 07.02.2003. As per Discharge Summary the deceased late Smt. Karuna Raj Vaderaa was around 81 years old and admitted on 31.01.2003. She was treated by Dr. S.K. Thakur, visiting Consultant. The patient was admitted with the complaint of recurrent vomiting, not passing stool for last two days and earlier also admitted with similar complaint. She was fully conscious, oriented and other medical parameters were also mentioned. The Discharge summary Ex. OW-1/7 gave the complete details in typed form from Ganga Ram Hospital on 14.02.2003. She was admitted there after discharged from Mool Chand Hospital. She was discharged by PC No. 73/10/08 Amitabh Narayan Vs State & Ors 44/62 Ganga Ram Hospital in stable condition. However, she is remained with the huge recurrent episode of SAIO and she lost the weight in the last six months.
81 These documents established that deceased testatrix was admitted on 31.01.2003 and discharge on 07.02.2003. Nothing abnormal with regard to mental and physical health observed in both discharge summaries, especially the Mool Chand Discharge Summary. It is pertinent to mention here that PW-1 Dr. Vinod Rai who happen to be the family physician in the family of the deceased testatrix put to detail cross-examination on the treatment aspect of the deceased at Mool Chand Hospital. According to his testimony he cannot tell the full form of NTG and also full form of SAIO and PSVT. He denied that deceased was sick when will was executed and under the influence of medicines provided to her in the hospital. On a different day on 07.03.2012 again was put to the same kind of cross-examination by the counsel for the objector Sh. Ashwal Vaderaa and he reiterated this fact. He clarified that this is not his specialty. He has given specific answer to a question that if a patient who is suffering from high blood pressure and stool is not passing for 2-3 days and suffering from SAIO and injection Nitroglycerin has been given to him the patient can walk. He admitted that he did not see the medical history of deceased testatrix.
82 I would like to refer to the testimony of CW-1 Dr. Col. S.K. Thakur who was consultant Gastroenterologist and prepared the Discharge summary Ex. OW-1/5. According to his testimony patient was admitted and she was in state of conscious and alertness. She never shifted to ICU. However, he admitted that PC No. 73/10/08 Amitabh Narayan Vs State & Ors 45/62 on 04.02.2003 she developed fast heat rate PSVT and treated with cardorne Tab. Dilzem and injection NTG to improve her condition and the condition was improved. He admitted that injection NTG was also given. He admitted that abenomitosis condition did not improve and conservatively medical treated after 03.02.2003 and according to him especially required surgery, therefore, found at proper to discharge on 07.02.2003. Dr. Col. S.K. Thakur also put to the investigation Ex. CW-1/X. He denied that the mental and physical condition of the deceased late Mrs Karuna Raj Vaderaa was not good. However, ld, counsel for the objector Sh. Ashwal Vaderaa did not put any suggestion that deceased testatrix was not in sound mental and physical health on 05.02.2003 at the time of execution and registration of the Will.
83 It is pertinent to mention there that no independent witness examined to prove the record of Ganga Ram Hospital and no other treatment which even points towards any ailment allegations of the objector with regard to unsound mind and health or physical health on 05.02.2003.
84 It is pertinent to mention here that OW-1 Sh. Ashwal Vaderaa tried to become medical expert on the basis of reading of Book of "Harrison's Principles of Internal Medicine". He put to detailed cross-examination on his medical knowledge. Although he is admitted to be law graduate and advocate. However, he failed to give any definite answer to the medical technical words and their effects. He admitted that he has never given under training being a medical qualified person. In my considered opinion, the efforts made by objector Ashwal Vaderaa to become PC No. 73/10/08 Amitabh Narayan Vs State & Ors 46/62 medical qualified person to give his opinion has not evidentiary value. His opinion cannot be superceaded the opinion of Dr. Col. S.K. Thakur, who treated deceased testatrix, specialist Doctor, Mool Chand Hospital.
85 The objector Ashwal Vaderaa also made an attempt by examining his relative OW-2 Sh. Anil Dhawan who alleged that on 05.02.2003 he had visited Mool Chand Hospital at 2 P.M. but unfortunately he could not see any activities and persons who involved in the execution of registration of Will. Accordingly to him deceased testatrix was in very serious condition and not her senses, therefore she was under influence of medicine.
86 In the detailed cross-examination he deposed that he came to know about the deceased testatrix in hospital on 05.02.2003 and he took oral permission. He did not see any of the nurse, attendant and doctor in the room but the wife of objector Smt. Simrat Katyal was present. He was confronted that whether he able to tell any year or dates but he failed to even give the date of attestation of his affidavit. However, he admitted that he has taken consultation with objector regarding arbitration proceedings. He has been settled in US since 1979. The presence of OW-2 Sh. Anil Dhawan on 05.02.2003 at 2 P.M. is highly doubtful because it is not believable that a person who is visiting must have inquire all his well being.
87 Secondly he did not disclose even to the wife of objector about the serious condition and also consulted Doctor on duty. He has not produced any documentary proof being US citizen on 05.02.2003 he was flying to USA. In my opinion he is PC No. 73/10/08 Amitabh Narayan Vs State & Ors 47/62 interested witness and deposed the fact which are un-believable and cannot prove on record. The testimony with regard to serious condition of deceased testatrix is imaginary and cannot be believed and established by his testimony, especially in the circumstances where specialist and medical record already proved on record.
88 On the basis of above observation and discussion, I am of the considered opinion that deceased testatrix was admitted in hospital on 05.02.2003 and she was in sound disposing state of mind and physically stable.
The will does not disclose any reasons for unequal/undivided distribution of assets given in the will.
89 The objector Sh. Ashwal Vaderaa vehemently argued that Will Ex. PW-1/A does not disclose any reasons for unequal/undivided distribution and mentioned about the fact that maximum benefit given to two sons Asheesh Vaderaa and Sh. Kanishka Vaderaa and not to the objector. During the course of arguments it has been highlighted that the earlier will dated 07.10.2002 was executed prior to the Will Ex. PW-1/A on 05.02.2003 filed on record on 24.09.2008. A comparative chat furnished during the course of the arguments. Initially in the Will dated 07.10.2002 all the movable properties including household effects, jewelery, bank accounts, investments (except for shares in all joint stock companies), fixed deposits in Banks and Reserve Bank of India, cash with deceased and all other assets (except for immovable properties) to a trust by the name of Karuna Raj Vaderaa Charitable Trust. In the Will Ex. PW-1/A dated PC No. 73/10/08 Amitabh Narayan Vs State & Ors 48/62 05.02.2003 all are beneficiary accordingly the charitable trust are same in addition in Ex. PW-1/A, 2000 square yards land at Lado Sarai was added. The objector Ashwall Vaderaa in the Will dated 07.10.2002 given 30 lakhs rupees and half undivided share in land situated at Lado Sarai at 5-A, Mehrauli Road, New Delhi. However, in the Will Ex. PW-1/A dated 05.02.2003 he was given half undivided share in the portion of mezzanine floor and portion of ground floor of property no. E-24, N.D.S.E, Part II, New Delhi as limited owner throughout his life, Half undivided share in lands situated in Lado Sarai at 5-A Mehrauli Road, New Delhi except 2000 square yard given to the Charitable Trust and all shares in joint-stock companies.
90 Sh. Asheesh Vaderaa had given in Will dated 07.10.2002 100 sq feet (10 feet x 10 feet) roof rights of Ex.24, N.D.S.E, New Delhi and in Will Ex. PW-1/A dated 05.02.2003 given 75 square feet ( 5 feet x 15 feet) roof rights of E-24, NDSE-II, New Delhi and the share has been reduced in the Will Ex. PW-1/A. 91 I do not find any unequal/unfair/undivided distribution because objector Ashwal Vaderaa had given half undivided share for life at mezzanine floor and ground floor of E-24, N.D.S.E, part- II, New Delhi which is highlighted would fetch huge amount of rent per month from the building in share of objector Sh. Ashwal Vaderaa. His half undivided hare in the land situated at Lado Sarai and all share in joint stocks companies were also given to him which were taken out from the share of Ms Monika Vaderaa W/o late Sh. Asheesh Vaderaa.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 49/62 92 In my considered opinion the comparison of two will established that deceased had free wish and intention to create a charitable trust which established from the Will Ex. PW-1/A and the referred Will dated 07.10.2002. Accordingly to her wisdom and wishes she had distributed and bequeathed the properties to maintain proper balance of share of all legal heirs. I do not find any substance in this arguments of objector.
The Will Ex. PW-1/A is forged and fabricated.
93 The objector, Sh. Ashwal Vaderaa vehemently argued that will is forged and fabricated. It is pertinent to mention here that there is no evidence led on this important aspect to establish the manner and how the Will Ex. PW-1/A becomes forged and fabricated document. On the contrary it has been highlighted by ld. Counsel Sh. Ravikesh Sinha for Sh. Asheesh Vaderaa and Ms Monika Vaderaa that during the proceedings an application filed regarding the comparison with regard to signatures and thumb impression of deceased testatrix by an expert. However, the objector Ashwal Vaderaa, himself objected on the ground that, it is merely advisory but he never took any steps to move forward to establish his allegations for forged and fabricated documents Ex. PW-1/A. 94 It is pertinent to mention here that PW-1 Dr. Vinod Rai and PW-2 Sh. Mukul Bhatnagar categorically stated that deceased has put her signatures and thumb impression on the Will Ex. PW-1/A in their presence and in the presence of other attesting witnesses. No oral and documentary evidence brought by objector Ashwal Vaderaa to establish that Ex. PW-1/A is forged and fabricated document, therefore, I find no merit in the allegations of objector Ashwal Vaderaa.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 50/62 Execution and Registration of Will as per Section 63 of Indian Succession Act read with Section 68 of Indian Evidence Act 95 The burden of proof is on the petitioner, who examined two attesting witnesses i.e. PW1 Dr. Vinod Rai and PW2 Sh. Mukul Bhatnagar. Their chief examination is tendered by way of affidavits Ex. P1 and Ex. PW2/A. The Will dated 05.02.2003 exhibited and proved by PW1 Dr. Vinod Rai as Ex. PW1/A. PW1 Dr. Vinod Rai cross-examined on 05.02.2010, 28.01.2011, 11.01.2012 and 07.03.2012 in very detailed manner by the contesting objector respondent no.2 Sh. Ashval Vaderaa. Dr.Vinod Rai was known to the Vaderaa family since 1989 through Ms. Monika Vaderaa as his father was in Army. Ms. Monika Vaderaa, respondent no.5 is wife of respondent no. 3 Sh. Asheesh Vaderaa. PW1 Dr. Vinod Rai further explained that many times he has prescribed medicines to deceased Smt. Karuna Raj Vaderaa without any prescription and knew that she has cardiac respiratory and intestine problem since 2000. He visit house of Sh.Asheesh Vaderaa at DLF, Gurgaon, once or twice a year.
96 PW-1 Dr. Vinod Rai explained that he was called by deceased Smt. Karuna Raj Vaderaa on 05.02.2003 in Mool Chand Hospital. She had called him through telephone on 04.02.2003 and told that she wanted to execute a Will and he had to attest it. The time was told to him was after lunch on 05.02.2003. Accordingly, he had reached at around 3.30 and stayed for about 30 to 40 minutes. He further explained that deceased Smt. Karuna Raj Vaderaa called him from Mool Chand Hospital as told by her. He further in detail mentioned that when he had reached PC No. 73/10/08 Amitabh Narayan Vs State & Ors 51/62 the hospital on 05.02.2003, one lady Mrs. Suri or Mrs. Puri and Mr. Mukul Bhatnagar and two other persons with legal background were present in the room besides deceased Smt. Karuna Raj Vaderaa. No other family member was available in that room of deceased Smt. Karuna Raj Vaderaa. He further explained that in his presence deceased Smt. Karuna Raj Vaderaa read the Will. She also scolded him why he came late. She took about 15-20 minutes to read the Will. He did not take any permission for entering in the hospital. He specifically deposed in cross-examination that he did not see the history sheet of deceased Smt. Karuna Raj Vaderaa but she was having intestine obstruction problem as informed by her as well as by Sh. Asheesh Vaderaa.
97 In the detailed cross-examination, PW1 Dr.Vinod Rai further deposed that he exactly does not remember who signed the Will first but might be signed by lady Mrs. Puri, then by Sh. Mukul Bhatnagar and thereafter, he signed. However, the deceased Smt. Karuna Raj Vaderaa signed the Will at the first. No government official was present except two persons having legal background have signed on the Will in his presence. No other person entered during that period in the room. He identified his signatures also on site plan annexed with the Will. Apart from him two other persons also signed the site plan but two person from the legal background not signed the site plan. After completion of signatures, the Will was handed over to deceased Smt. Karuna Raj Vaderaa and thereafter, he left the room. He did not make inquiry who got the Will prepared and whom she had given the property. He further deposed that he has seen the Will after 05.02.2003 in the court. Thereafter, he was cross-examined on PC No. 73/10/08 Amitabh Narayan Vs State & Ors 52/62 medical aspect and treatment given to deceased Smt. Karuna Raj Vaderaa but he specifically answered that he is not specialist to give particular effects that medicines given to her and terminology NTG, SAIO and PSVT. He also explained that he knew the Executor Sh.Amitabh Narayan since 2009. He denied the suggestion that he was sent to Sh.Amitabh Naryan by Sh. Asheesh Vaderaa or that Sh. Asheesh Vaderaaa accompanied to the office at Tis Hazari in the year 2009 for signing a document. He has reiterated that he had seen the Will Ex. PW1/A and it has signatures of deceased at two places and also on the map at one place. He could not able to identify signatures of two other witnesses apart from attesting witnesses.
98 PW-1, Dr. Vinod Rai further deposed that he did not examine deceased Smt. Karuna Raj Vaderaa on the execution of Will as doctor and the endorsement made on the Will is not in the nature of a certificate given by a doctor. He further explained that at the time of execution of Will apart from him two other witnesses signed the Will in his presence. The legal persons were from Sub Registrar of Assurance. He again reiterated that the Will was handed over to deceased Smt. Karuna Raj Vaderaa. He denied the suggestion that Will was not executed at Hospital or that he in connivance of Sh. Asheesh Vaderaa and other witnesses has prepared the fabricated Will.
99 PW1- Dr. Vinod Rai in his cross-examination further narrated the procedure at the time of execution of the Will. The Will was given to the first witness, who signed it and also put his thumb impression. Thereafter, Will was given to second witness, who also signed and put the thumb impression and through the PC No. 73/10/08 Amitabh Narayan Vs State & Ors 53/62 same procedure the Will came before him and he also signed and put his thumb impression. He identified the signatures of Sh.Mukul Bhatnagar, Smt. Ritu Suri and Sh. Jai Narain but could not disclose the thumb impression. He further explained when he has narrated the events regarding the execution of Will to Sh.Amitabh Narayan on the next date when he called to sign the affidavit (document) containing the facts and events of execution of Will.
100 PW-1 Dr. Vinod Rai categorically deposed that he is not aware that Sh.Ashval Vaderaa - Objector no.2 assisted deceased Smt.Karuna Raj Vaderaa in her business. He denied all the question put to him with regard to Sh. Ashval Vaderaa. He is not aware of the admission of deceased Smt. Karuna Raj Vaderaa at Ganga Ram Hospital. He specifically answered a question that Sub Registrar affixed his signatures on the Will on that day but he was not watching while he was signing, although he was present there. He explained that his affidavit was attested in his presence at Delhi High Court. He denied that Will Ex. PW1/A is forged and fabricated.
101 PW2 Sh. Mukul Bhatnagar, who also cross-examined in detail on 04.07.2012, 01.09.2012 and 24.11.2012. PW2 Sh. Mukul Bhatnagar is the CA of deceased Smt. Karuna Raj Vaderaa and deposed that she knew her since 1995. Deceased used to take second advice and consult him and he continued to advise her till her death. He explained that the deceased recommended him to Sh. Asheesh Vaderaa in the year 1995. He denied that he has no connection with deceased Smt. Karuna Raj Vaderaa and he is CA of Sh. Asheesh Vaderaa. He also called by deceased PC No. 73/10/08 Amitabh Narayan Vs State & Ors 54/62 Smt. Karuna Raj Vaderaa at hospital for execution of Will through telephone. He had reached at her room in hospital in the afternoon at 2.00 p.m. but did not got prepared any pass. He further explained at that time in the room apart from him deceased Smt. Karuna Raj Vaderaa, one lady Mrs. Ritu, one officer from Sub Registrar and one lawyer were also present.
102 PW2 Sh. Mukul Bhatnagar also shared experience on asking about execution of sale deed at Sub Registrar office. He further explained Dr. Vinod Rai, the other attesting witness came after half an hour after his reaching and he remain in the hospital till 4.00 p.m. He deposed that he has not seen the Will after signing except in the court today. He further explained that he knew Sh.Amitabh Narayan, Executor as lawyer of Sh. Asheesh Vaderaa, Sh. Ashval Vaderaa and deceased Smt. Karuna Raj Vaderaa, who were the share holders and Directors in Demen & Ash Pvt. Ltd. He further explained how his affidavit was got prepared, which he has tendered in examination-in-chief. In the cross-examination original Will Ex. PW1/A was put to him but he was not sure about signatures and thumb impression of deceased Smt. Karuna Raj Vaderaa except from points A to M. 103 PW-2 Sh. Mukul Bhatnagar further reiterated and corroborated the fact that Dr. Vinod Rai came late and they waited for half an hour. He also explained that he is not able to recollect what the officer of Sub Registrar was doing because it is more than 10 years ago. He also explained that Will Ex. PW1/A was read over by deceased Smt. Karuna Raj Vaderaa and she take 20-25 minutes. He corroborated the fact that on the Will his signatures, signatures of Mrs. Suri and Dr. Vinod Rai were also PC No. 73/10/08 Amitabh Narayan Vs State & Ors 55/62 taken. He was confronted with the dates at point X1 and X-2 on the Will but he was not able to recollect about the overwriting of dates. He further explained that he has also signed the Annexure i.e. site plan along with the will on that day. He reiterated that ony deceased Smt. Karuna Raj Vaderaa had read out the Will. In his presence no doctor came to the room of the deceased in the hospital. He was not able to tell whether any medical certificate was given by the hospital for registration of Will on medical ground. He denied that deceased Smt. Karuna Raj Vaderaa was not in physical condition to read and write the Will on that day and also not in a position to explain the contents of the Will. He identified the signatures of Sub Registrar at points P, X1 and X3 on the Will. He further explained that when he reached the hospital deceased Smt. Karuna Raj Vaderaa was having the Will with her. He denied the suggestion that he is friend of Sh.Asheesh Vaderaa.
104 PW2 Sh. Mukul Bhatnagar, further deposed that he was called at hospital by deceased Smt. Karuna Raj Vaderaa at 2.00 p.m. The Will was presented to officials of Sub Registrar office at about 3.30 p.m. To a specific question, he answered that Will was signed by deceased Smt. Karuna Raj Vaderaa and by him and subsequently it was handed over to officials of Sub Registrar and during that time Dr. Vinod Rai also signed on the last page of the Will. He also confronted to the signatures of Sub Registrar officials when he appeared on 24.11.2012. He also identified after seeing the Will, sign of official of Sub Registrar at point X1 on the Will Ex. PW1/A. He further deposed that he is not sure about any register carried out by officials of Sub Registrar but rubber stamps were carried out and affixed on the Will. He PC No. 73/10/08 Amitabh Narayan Vs State & Ors 56/62 denied the suggestion that Ex. PW1/A in connivance with Sh. Asheesh Vaderaa has been forged. He reiterated the signing of the Will Ex.PW1/A in the presence of officials of Sub Registrar office. He denied that no official from Sub Registrar office went to the room of deceased and Will Ex. PW1/A is forged and fabricated.
105 The testimony of PW1 Dr. Vinod Rai and PW2 Sh.Mukul Bhatnagar clearly establish that both are well known to the Vaderaa family. A doubt is tried to be created that Sh.Asheesh Vaderaa, respondent no.3 and Mrs. Monika Vaderaa introduced the attesting witnesses and they were not known to deceased Smt. Karuna Raj Vaderaa. I do not agree with the contention. Both the witnesses explained that they were well known to the Vaderaa family. PW1 Dr. Vinod Rai is known since 1989 and PW2 Sh. Mukul Bhatnagar is the CA of deceased Smt. Karuna Raj Vaderaa. On the contrary deceased Smt. Karuna Raj Vaderaa introduced Sh. Mukul Bhatnagar to respondent no.3. There was another attesting witness Mrs. Ritu Suri. Both the witnesses in the very detailed cross-examination explained that they appeared after about 10 years of execution and registration of Will, how they were called by the deceased herself to attest the Will and they explained in detail how they signed the Will and Will was executed and thereafter got registered by Sub Registrar officials at Mool Chand Hospital on 05.02.2003.
106 Ld. Counsel for the Objector Sh. Ramesh Kumar tried to put and carved out suspicious circumstances about the absence of the fact that who drafted the Will and when it was typed and tried to point out that respondent no.3 is instrumental PC No. 73/10/08 Amitabh Narayan Vs State & Ors 57/62 in registration and execution of the Will. Further respondent no.2 fail to brought on record any oral or documentary evidence to create or substantiate the suspicious circumstances. In my considered opinion it will not affect legality and genuineness of the Will if it is not brought on record any particular circumstances who drafted the Will and when it was typed. However, these facts were well within the knowledge of deceased Smt. Karuna Raj Vaderaa and could not be brought on record as she did not explain over to attesting witnesses or Executor during her lifetime as it appears from the material brought on record.
107 It is pertinent to mention her that during the course of arguments, registered Will dated 07.10.2002 was also referred. As per record, the photocopy of the said Will was filed on 24.09.2008 but it is not clear from the order sheet who had filed this copy of Will on record. I have gone through this Will also. This will also having three witnesses Dr. Vinod Rai, Sh.Mukul Bhatnagar and Smt. Ritu Suri. The contents of the Will are almost verbatim to the Will in question dated 05.02.2003. The difference of bequeathing the portion of properties has been varied. The deceased Smt. Karuna Raj Vaderaa had created a Trust in this Will dated 07.10.2002 and categorically stated that it will come into operation immediately after her death. However, she made modification, which I have observed by comparing the shares. The Objector was given life right in the property in place of Rs.30 lacs and he was also given the shares and company stocks in the Will in question. It has to be bear in mind that deceased Smt. Karuna Raj Vaderaa was a business woman as established on record as per the material brought on record including the testimony of all the witnesses and also of the PC No. 73/10/08 Amitabh Narayan Vs State & Ors 58/62 Objector Sh. Ashval Vaderaa's testimony she must be well educated. In her each Will even the last Will she has revoked precisely all her earlier Wills. The Will dated 07.10.2002 and Will Ex. PW1/A dated 05.02.2003 also established that she was philanthropist and had concern with the society and social cause that is why she has created a Trust for charity and more specifically for uplift and welfare of orphans and children who have been abandoned or are living in a welfare home or with a social organization. The trustees includes Sh.Asheesh Vaderaa - respondent no.3 and Smt. Ritu Suri, one of the other attesting witness but they were not given any financial benefits.
108 I do not find any suspicious circumstance when a well educated business woman execute and got registered a Will while admitted in hospital on 05.02.2003. The attesting witnesses have explained each and every minute detail whatever they recollected after 10 years of execution and registration of Will. The treating doctor, Dr.S.K. Thakur also proved mental and physical health of deceased Smt. Karuna Raj Vaderaa. Another very vital piece of evidence brought on record during the cross- examination of PW1 Dr. Vinod Rai, which established on record beyond any reasonable doubt about the mental soundness of deceased Smt. Karuna Raj Vaderaa on the day of execution and registration of Will dated 05.02.2003 i.e. when PW1 Dr. Vinod Rai came late about half and hour, she had scolded him. How a person who is not mentally and physically fit scolded a person and realize that a person is late as per the time given and other persons are waiting for him. In my considered opinion, there is no room for any suspicion after going through the testimony of PW1 Dr. Vinod Rai and PW2 Sh. Mukul Bhatnagar.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 59/62 109 Ld. Counsel for the Objector vehemently also argued that neither Executor Sh. Amitabh Narayn nor respondent no.3 Sh. Asheesh Vaderaa stepped into the witness box to clear suspicious circumstance. In my opinion, their absence does not affect the important and vital evidence brought on record with regard to execution and registration of Will. There was no obstruction and hindrance to the Objector Sh.Ashval Vaderaa to call Executor Sh. Amitabh Narayn in the witness box. Ld. Counsel for the Objector also pleaded that father of Sh. Amitabh Narayan is the Counsel for Sh.Asheesh Vaderaa in some earlier proceedings in family settlement and arbitration proceedings. During cross-examination, it has brought on record that Sh.Amitabh Narayan also represented Sh. Ashval Vaheraa in some other proceedings. In my opinion, Sh. Amitabh Narayan is the Advocate not only for deceased but also for other family members whenever they required his services. 110 It is pertinent to mention here that my attention has been drawn to the important fact about the conduct of the Objector Sh. Ashval Vaderaa, who himself is qualified professional Advocate. According to his own admission, objector Sh.Ashval Vaderaa was managing the affairs of M/s. Kunj and Company owned by deceased Smt. Karuna Raj Vaderaa. As per order dated 29.09.2008, the Objector Sh.Ashval Vaderaa, who was the authorized signatory in the Bank of Rajasthan, after the death of deceased Smt. Karuna Raj Vaderaa tried to set up the case of partnership instead of sole proprietorship and the tenant in the premises M/s. Roop Saree was directed not to give any sum on commission to M/s. Kunj and Company. Bank of Rajasthan also directed not to allow any transactions to M/s. Kunj and Company without the permission of the court.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 60/62 111 On the basis of above observation and discussion, in my opinion PW1 Dr. Vinod Rai and PW2 Sh. Mukul Bhatnagar were natural, known and prudent attesting witnesses to the Will as desired by deceased Smt. Karuna Raj Vaderaa. Their testimony established beyond any suspicious circumstance that the Will Ex.PW1/A dated 05.02.2003 was validly executed and registered at Mool Chand Hospital in the room of deceased on 05.02.2003 in the presence of the attesting witnesses and officials from Sub Registrar office. The will Ex. PW1/A is the last and genuine Will of deceased Smt. Karuna Raj Vaderaa.
112 In view of the above observation and discussion, issue no. 1 & 2 are decided in favour of petitioner and against respondent no. 2 Sh. Ashwal Vaderaa, the contesting respondent.
Relief 113 In view of finding on issue no. 1 & 2 petitioner Amitabh Narayan is entitled for Probate to the Will annexed Ex. PW-1/A being the Sole Executor after obtaining requisite Court fee and administration bond to the total tune of Rs. 5,26,84,720 (Rupees Five Crore Twenty Six lacs Eighty Four Thousand Seven Hundred Twenty only) in respect of property bearing No. E-24, Main Market, South Extn-II, New Delhi as agreed by the petitioner.
114 In respect of other movable and immovable properties, no valuation has been received, the petitioner shall pay the Court fees and administration bond with respect to that movable and immovable assets as and when valuation report in that respect received.
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 61/62 115 Further, the petitioner is directed to file the inventory of the immovable property within six months and final statement of account within one year from the date of receipt of formal letter of administration. The formalities of issuance of Probate shall completed by the petitioner/beneficiaries within six months from the date of the judgment as per Section 290 & 291 read with Section 317 of Indian Succession Act.
116 It further clarified that the question of title, share or ownership of movable property mentioned herein above is not decided by this Court. File be consigned to the Record Room.
SANJAY Digitally signed by SANJAY
KUMAR
KUMAR Date: 2018.03.09 21:36:17
+0530
(Announced in the open (SANJAY KUMAR)
court on 8th March , 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 62/62
PC No. 73/10/08 Amitabh Narayan Vs State & Ors 63/62