Delhi District Court
Smt. Praveen Kalra vs State on 18 February, 2013
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-
II (NORTH) DELHI.
PC-60/11/01
In the Matter of:
1. Smt. Praveen Kalra,
2. W/o Sh. Y.P. Kalra,
3. R/o ED-19C, Pitam Pura,Delhi.
4. Smt. Kanchan Khurana,
5. W/o Late Sh. D. Paul Khurana,
6. R/o B-304, Prashant Vihar, Delhi-85 .....Petitioner.
VERSUS
1. State
2. Smt. Rama Kant Talwar
(Dead, name deleted on 03.10.2005/15.1.09)
3. Ms. Manju Talwar,
D/o Late Sh. H.C. Talwar,
R/o A-193, B, Sec-26,
Noida, U.P.
4. Ms. Shashi Arora, W/o Sh. G. L. Arora,
R/o 10/1, F.F. Indira Vikas Colony,
Mukherjee Nagar, Delhi-9.
5. Sh. Manmohan Arora,
(Deleted on 03.10.2005/15.1.09)
6. Smt. Adarsh Sharma, D/o Sh. R.L. Sharma
PC-131/11 Page No. 1/27
R/o B-5/6, Sector-18,
Rohini, Delhi-85.
7. Sh. Deen Dayal Verma,
S/o Not known, R/o Mumbai,
Complete address not known.
8. Sh. Pranay Verma, S/o Sh. Deen Dayal Verma,
R/o Mumbai,
Complete address not known.
9. Sh. Sunil Trikha, S/o Not known,
R/o R-43, Inder Puri, Delhi.
10.Ms. Baby Juhi Trikha,
D/o Sh. Sunil Trikha,
Through next friend, father and natural guardian
Sh. Sunil Trikha,
R/o R-43, Inder Puri, Delhi. ......Respondents.
Date of Institution: 23.10.2001
Date of Assignment to this court: 03.09.2012
Date of Arguments: 21.01.2013
Date of Decision: 18.02.2013
JUDGMENT
1. This is a petition under section 276 of the Indian Succession Act, 1925 for grant of probate of Will dated 28.1.2000 of Late Ms. Kiran @ Kiran Malhotra D/o Late SH. H.C. Talwar filed by petitioners against the respondents. The brief facts of the case are that deceased Ms. Kiran during her life time was resident of PC-131/11 Page No. 2/27 B-35, Oriental Apartments, Sector9, Rohini, Delhi-85 and said flat was purchased by the testatrix from her own personal funds, savings and recourses and she was working with Punjab National Bank till her death. It was further pleaded in the petition that Ms. Kiran Malhotra was also maintaining a Maruti Car bearing No. DL-6CE-5141 and was having the bank accounts and locker as detailed in petition. It was further stated that Ms. Kiran was a divorcee and she was the daughter of respondent No. 2 and sister of respondent No. 3 and 4 and respondent No. 5 is the son of respondent No.4. It was also averred in the petition that Ms. Kiran was a religious and spiritual lady having faith in god and goddess and bhajan kirtan and satsang used to be arranged in the said flat of Ms. Kiran on fortnightly basis and on other occasions also. It was further submitted by petitioner in petition that Ms. Kiran, the testatrix had developed faith in the present petitioners and particularly in petitioner No. 2 as the testatrix was a divorcee and was living alone as her family members i.e. respondent No. 2 to 5 have discarded her and had no concern with her and she made her will in favour of present petitioners and respondent No. 6 and said Will is duly written by the testatrix in her own handwriting in her diary on 28.1.2000 which was also witnessed by witnesses as mentioned in petition. It was also stated that as per contents of said Will, Ms. Kiran bequeathed her rights in respect of her flat, bank A/cs, locker, PC-131/11 Page No. 3/27 car, provident fund and gratuity etc. in favour of the petitioners and respondent No. 6 as detailed in petition. It was further the case of petitioner that in said Will testatrix has clearly mentioned that this Will has to be treated as her first and final will and everything has to be done according to this Will after her death and testatrix executed the said will voluntarily without any outside pressure, in full possession of her senses. As stated Ms. Kiran @ Kiran Malhotra died on 26.9.2000 at Jaipur Golden Hospital, Delhi due to severe Pneumonia and all the expenses on her ailment, last rites and other ceremonies have been incurred and born by present petitioner No. 2. It was further averred in the present petition that after demise of Ms. Kiran, respondent No. 2 in collusion with respondent No. 3 to 5 has illegally started residing in said flat and even threatened to sell and transfer the flat of Ms. Kiran. It was stated that petitioner No. 2 had filed a suit for permanent injunction against present respondent No. 2 to 4 in the court of Ld. Senior Civil Judge, Delhi and Court of Sh. Parveen Kumar, Ld. Civil Judge, Delhi vide his order dated 05.7.2001 issued an interim injunction order in favour of present petitioner No. 2 and against present respondent No. 2 to 4 thereby restraining the respondents No. 2 to 4 from selling, transferring and alienating the suit property. During pendency of the case, respondent No. 2 expired and her name was ordered to be deleted from the array of respondents vide order dated PC-131/11 Page No. 4/27 03.10.2005 and it was informed to court by counsel for respondent that after death of Smt. Rama Kant Talwar, erstwhile respondent No. 2, legal heirs of two of her pre-deceased daughters also needs to be impleaded as respondents and he submitted the particulars of pre-deceased daughters and legal heirs of respondent No. 2 as mentioned in petition i.e. Smt. Usha Verma and Smt. Anju Trikha. It was further pleaded in the petition that as per the Will, all the properties mentioned in petition, solely vests in the petitioners except locker No. 317, PNB ECE House Connaught Place, New Delhi which vests with respondent No. 3. Hence, it was prayed that probate be granted to the petitioners in respect of Will dated 28.1.2000 as per the contents of Will.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report which was filed on 21.5.08. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " National Herald" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper "
National Herald" on 21.1.02.
4. Reply to the petition was filed by respondent No. 3 wherein preliminary objections were raised stating that present petition is PC-131/11 Page No. 5/27 not maintainable in the present form as same has not been filed under the relevant provisions of law and same is liable to be dismissed. It was also stated in reply that petitioners have no locus standi to move the present petition as petitioners are neither trustee nor the said satsang is a registered organization, hence petitioners are not competent to proceed with the present petition. On merits, it was stated that alleged testatrix' mother had purchased this property out of her own funds in the name of alleged testatrix and she was also residing in the property alongwith the alleged testatrix. It was also averred in reply that in suit No. 952/2000 the Ld. Commissioner had inspected the site and had submitted his details report dated 21.3.2001. It was further stated in reply that sister of answering respondent who is alleged testatrix of the alleged Will was suffering from mental shock and agony on account of sudden and accidental death of her sister Smt. Anju who expired in a road accident. It was also stated that alleged Will in question being forged and fabricated, the petitioners are not entitled to the grant of probate/letter of administration to the estate and properties of the deceased above named. Rest of the contents as raised in petition were denied in reply and it was prayed that petition of petitioners being false, frivolous and not maintainable is liable to be dismissed with costs and may be dismissed.
5. Separately objection/written statement was filed by respondents PC-131/11 Page No. 6/27 No. 4 and 5 to the petition wherein they raised the preliminary objections stating that probate petition is not maintainable as the petitioners have not stated how they are entitled for probate order from this court on a fabricated documents, hence the petition is liable to be dismissed with costs. It was further stated that petitioners have played fraud before this court and suppressed the material facts prior to filing the said petition. It was also stated that petitioners have not filed the diary of the year 2000 where the said pieces of paper taken away alleged called 'Will'. On merits, it was stated that Ms. Kiran deceased had not executed any so called Will dated 28.1.2000 in respect of movable and immovable properties. It was further averred in reply that both petitioners and respondent No. 6 and group of other ladies have intention and motive to cheat and further made and prepared the alleged papers so called Will with the intention to grab the properties of others by black-mailing to any one. It was further submitted that the alleged property i.e. B-35, Oriental Apartment, Sector-9, Rohini, Delhi-85 was purchased from the sale proceeds of old house of Sh. H.C. Talwar i.e. Parental property of respondent No. 2 and 3 including deceased. It was also stated that these petitioners have even not filed the alleged year diary from which these papers are turned out because the same is fabricated document. It was further replied that petitioners including respondent No. 6 are belonging to a PC-131/11 Page No. 7/27 group of such ladies who have destroyed the family of new couples and involved in scandalous acts. It was also stated that deceased was hard working lady and had general faith in god and goddess and not having faith as the petitioners stated. It was also averred in the reply that alleged witnesses have even not written the date of signatures on alleged Will. It was also stated that petitioners and respondent No. 6 have distributed entire properties movable and immovable proportionately on the basis of efforts made to manufacture the false and fabricated document. It was also stated in reply that after death of Ms. Kiran Malhotra, the dead body was taken by the husband of the respondent No. 4 from the hospital and cremated by the son of the respondent No. 4 alongwith all the family members of the deceased at Nigam Bodh Ghat, Delhi and funeral expenses were incurred by the husband of the respondent No. 4 and his son respondent No. 5 and also the expenses at Haridwar. Rest of the contents of petition were denied and it was prayed that instant petition be dismissed.
6. The petitioners filed separate rejoinder to the reply of respondents wherein contents of petition were reiterated by them and those of reply were denied.
7. Respondent no. 6 was served on 12.2.02, respondents no. 7 and 8 were served through publication whereas respondents no. 9 and 10 were served on 8.2.06. However during proceedings, PC-131/11 Page No. 8/27 respondents No. 6 to 10 were proceeded ex-parte vide order dated 26.04.2006 and matter was fixed for admission denial and framing of issues
8. After completion of pleadings, the following issues were framed vide order dated 19.05.2006:
1). Whether the Will dated 28.01.2000, propounded by the petitioner is the validly executed last and final Will of the testator Kiran @ Kiran Malhotra in sound disposing mind?OPP
2). Whether the petitioners have no locus standi to file the present petition in view of the objections?OPR.
3). Relief.
9. During proceedings of the present case, an application U/s 151 CPC was filed by petitioners for deletion of name of respondent No. 2 from array of parties. However, vide order dated 03.10.2005 it was inadvertently mentioned in the last para of order dated 03.1.2005 that name of respondent No. 3 be deleted from the array of parties. Thereafter, vide order dated 15.1.2009, it was brought to the knowledge of court that respondent No. 3 Ms. Manju Talwar is still alive and contesting the petition, hence same was corrected and it was ordered that name of respondent No. 2 Smt. Rama Kant Talwar be deleted from the array of parties instead of respondent No. 3. Vide order 15.1.2009 the name of respondent No. 5 was also deleted.
10.In evidence, petitioners have produced several witnesses PC-131/11 Page No. 9/27 including themselves i.e. PW-1 Sh. Parveen Kalra petitioner No. 1, PW-2 Smt. Kanchan Kumari, petitioner No. 2, PW-3 Mrs. Kailash Chawla, PW-4 Mrs. Ishwari Devi, PW-5 Sh. P.N. Pandey who is clerk from Punjab National Bank, New Delhi, PW-6 Sh. Mohan Lal who is Clerk cum Cashier, in Punjab National Bank New Delhi, PW-7 Sh. Ajay Ver, who is Manager in Punjab National Bank New Delhi and PW-8 Sh. R.S. Jamwal, who is Deputy Manager in Punjab National Bank New Delhi. All witnesses were duly cross-examined by counsel for respondent. PW-1 who is petitioner No. 1 has stated in her cross-examination that she is only a member of the Satsang and stated that Ms. Kiran joined satsang in the year 1993. It was also stated that she knew that Ms. Kiran was residing separately from her husband but she denied that mother of Kiran was residing with her. She also stated that as Kiran had married twice and on both the occasions, the marriages culminated into divorce, hence she had been discarded by her family members. She also stated that Kiran had full control over her mental faculties till her demise and that members of the Satsang used to look after and take care of Ms. Kiran in the hospital. It was also stated that she introduced Kiran to Kanchan Khurana who is petitioner No. 2. IT was further stated in her cross-examination that during Kiran's hospitalization, Kiran handed over a couple of papers to her and informed her that same contain her Will. She also stated that PC-131/11 Page No. 10/27 after discovery of Will, Mrs. Kanchan Khurana petitioner No. 2, the nominee of Kiran, operated the PPF account and withdrew the entire money to the tune of approximately Rs.70,000/- from said account and she is in possession of car which was owned by Kiran as it was bequeathed to her. PW-3 in her cross- examination has stated that her signature at point B on Ex. P-4 was taken in the presence of Smt. Ishwari Devi and Smt. Kiran and that Will was signed by her as an attesting witness at 10 -
10. 30. a.m. It was also stated that Kiran was close to all the members of the Satsang as after the Satsang, she was engaged in arranging certain things and Kiran had written the Will in another room and as she came out, she found her present there and hence requested her to sign as an attesting witness. PW-4 in her cross-examination has stated around evening after the satsang the satsangies had left but Kiran entered her room and emerged after some time and requested her to witness the Will and Kiran had also requested Smt. Kailash Chawla to witness her Will. She also stated that Kiran had put the date on the Will and date had not been incorporated in her presence and Will had been written by Kiran in the room, but they were sitting outside and Will was not written in their presence. PW-5 who is Clerk from Punjab National Bank, Parliament Street, New Delhi has appeared in witness box for his cross-examination. He has denied that nomination under the PPF can only be made in PC-131/11 Page No. 11/27 favour of family members and stated that nomination can be made in favour of any person. Rest of the witnesses from bank have also appeared in witness box and deposed as per records maintained by bank.
11. It is pertinent to mention here that affidavit of evidence of PW-2 was only tendered but she did not appear in witness box for cross examination, however it seems that inadvertently in ordersheet dated 7.8.07 name of Kailash Chawla was wrongly mentioned as PW-2 whereas PW-2 was Kanchan Khurana and she was the one who did not come in witness box for cross examination whereas Sh. Kailash Chawla had been cross examined.
12.In defence, respondents also produced witnesses in support of their case i.e. R3W1 Smt. Manju Talwar, R3W2 Sh. K.L. Chawla, R4W1 Smt. Shashi Arora, R4W2 Sh. Manmohan Arora, and R4W3 Smt. Bimla Talwar and thereafter, R.E. was closed. R3W1 in her cross-examination has stated that the property at Shakti Nagaer was sold by all the legal heirs of Sh. H.C. Talwar and all the legal heirs of Sh. H. C. Talwar had executed a sale deed for effectuating the sale of property at Shakti Nagar. It was also stated that deceased Kiran was closed to the entire family. It was also stated that all the family members used to go to the hospital to meet Kiran. It was also stated that expenses towards the hospitalisation of Kiran were made by Kiran herself as she PC-131/11 Page No. 12/27 had issued cheques for payment of hospital bills and the funeral expenses of Kiran were met by my sister Shashi Arora. R4W1 Smt. Shashi Arora has stated in her cross-examination that she used to daily visit the hospital where Kiran was admitted prior to her death. It was also stated that her mother was residing in the flat of Kiran after the death of Kiran. It was also stated that flat of Kiran was purchased out of sale proceeds of Shakti Nagar property. She has also stated that she can identify the writing and signatures of Kiran and the writing and signatures on the Will Ex. P-4 are not of Kiran. R4W2 Sh. Manmohan has stated in his cross-examination that he met the petitioner for the first time on the death of the testatrix and he only know Praveen Kalra. He also stated that he never had any conversation with her and the expenses for the treatment of the deceased were borne by my Naani and he had borne the expenses of her funeral. He further stated that token money regarding the sale of Shakti Nagar property was received on 25.12.95 and Shakti Nagar property was sold out for Rs. 28 lacs. R4W3 Smt. Bimla Talwar in her cross-examination has stated that she know the said Smt. Kalra and others for the past 12-13 years and property for which dispute is pending in court is lying locked and Smt. Shashi Arora, Manju Arora and Satsangi have locked this. It was also stated taht she had not seen the said Will and cannot say whether the said Will is genuine or forged.
PC-131/11 Page No. 13/2713.I have gone through the records and have heard the arguments addressed by counsels.
14.Issue no. 1 and 2:- Both these issues are taken up together as the same are interconnected. Before proceeding to decide these issues, I would like to discuss the relevant law and judgments on this point. Section 278 of Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
15. Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.PC-131/11 Page No. 14/27
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
16. Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a PC-131/11 Page No. 15/27 document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
17. Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession PC-131/11 Page No. 16/27 Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51.
18. In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the PC-131/11 Page No. 17/27 said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the PC-131/11 Page No. 18/27 Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR
578.
19.The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of late Ms. Kiran @ Kiran Malhotra so as to say that it was executed by her in disposing mind out of her own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
20.The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. PC-131/11 Page No. 19/27 statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
21.The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the PC-131/11 Page No. 20/27 whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
PC-131/11 Page No. 21/27"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
22. Now I have to see whether in the present case the above principles PC-131/11 Page No. 22/27 have been duly made out or not.
23.This is a unique case of Will whereby estate of the deceased had not gone to any of the legal heirs but to some persons who were indulged in some religious activities. The Will in question is hand written and as per the Will no share has been given to her legal heirs by the deceased. It is not disputed that deceased was divorcee and child less. The only suspicious circumstance which could be raised is that there is not much gap between the death of the testator as well as execution of the Will but that itself is not so sufficient to raise grave suspicion because there is a gap of eight months. No evidence has come on record by any of the parties to show that the deceased testator was not of sound mind. The death has been caused due to pneumonia in the hospital. Witness namely R4W2 Man Mohan Arora has rather stated that he met the deceased in hospital twice before her death and she was having sound mental condition. So the objectors themselves have proved on record that deceased was not suffering from any disease effecting her cognitive faculties. The beneficiaries have not take active participation in the execution of the Will and rather they were ignorant about the execution of the Will after its execution till the time the same was handed over to them by the deceased herself. The witnesses have no personal interest rather the testimony of both the attesting witnesses have remained unchallenged. Thought PC-131/11 Page No. 23/27 the Cl. for the objector had submitted that the Will was not written in the presence of witnesses, hence it should be discarded but the testimonies of the witnesses clearly show that it was written in the room by the deceased herself and thereafter was signed in the presence of the witnesses and witnesses also signed in presence of each other. So the basic requirement of law as propounded above has been satisfied. The objectors could not prove on record that they had any visiting terms with the deceased and when it has come on the record that the decease had gone to the shelter of god and wanted to live her life as follower of dharma then no doubt can be raised if she wanted to to devote her property for it being used for the purposes of satsang. Moreover, she was not an illiterate lady as it has come in the evidence that she was working in Punjab National Bank, Parliament Street. The argument of the objector that property in question was purchased in the name of deceased due to proceeds of ancestral house is also of no use for this court because this court cannot decide the title of the property in the present proceedings and even otherwise the said plea is barred under Benami Transaction Act. I rely upon Anita Khosla Vs. State & Ors decided by Hon'ble High Court on 21.10.10 wherein it was held that " In the petition for grant of probate, the court is not concerned with the title of the Testator with respect to the property bequeathed by PC-131/11 Page No. 24/27 him/her. What the court has to see whether the Will was duly executed and whether its execution has been proved in accordance with law or not. Obviously, if the testator himself/ herself did not have any right, title or interest in the property, subject matter of the Will executed by her, the legatee will not derive any right, title or interest in the property on the basis of such a Will. If the Testator had an interest less than that claimed by her in her Will in respect of a property, the legatee will get only that much interest as was vested in the Testator with respect to that property." Cl. for objectors has further argued that it is not made out as to why the testator will give the property to some strangers. This argument is also devoid of any force because in the Will itself she has mentioned that she wants to devote this flat for Satsang and her said intention is not only made out from the Will but also from the other relevant documents produced by PW-5,6,7 and 8 vide whose statement it has come on record that the deceased before the execution of the Will changed the nomination in the GPF account etc. and did not mention the names of any of the objectors in any of them. In Punjab National Bank on 6.5.97 she has shown Kanchan Khurana as her nominee as per document Ex. PW-5/A duly witnessed by Smt. Parveen Kaltra. Rather copy of ration card of Smt. Kanchan Khurana was also annexed with the nomination form. She has PC-131/11 Page No. 25/27 mentioned the name of Sh. Adarsh Sharma, respondent no. 6 in her locker account way back on 9.10.95 and had mentioned the same also in her Will so it cannot be stated that she had no memory at that time and rather has clearly mentioned that after her death respondent no. 6 will be entitled to the same and thus she endorsed her earlier deeds. Vide Ex. PW-7/A nomination is to be proved in the name of Smt. Kanchan Khurana qua EPF which was also executed much earlier than the execution of the Will and duly proved by the witnesses. Ex. PW-8/A also proves the version of the petitioner. Thus it is amply proved on record that this was not the first time while writing the Will that the deceased had thought of giving the property in question to the petitioners but much before that she had clarity in her mind regarding the same. The objectors have also argued that mother of deceased namely Smt. Rama Kant Talwar was residing with the deceased and it is not explained and also improbable that nothing was given to her by the deceased. R3W1 has stated that Smt. Rama Kant Talwar, mother had died at her residence and so it has become doubtful as to whether she was living in the flat in question earlier and after the death of Kiran or not. Moreover, she has admitted in cross examination that signatures on the Will are of Ms. Kiran and writing also appears to be of Ms. Kiran. Hence the basic requirements of the law that firstly this Will is last testimonary disposition of the deceased, secondly this PC-131/11 Page No. 26/27 was executed out of her free will and without coercion and was made in full state of mind and thirdly the Will was correct declaration of the intention of the deceased, are duly made out. The execution is also proved and requirements of law as stated above are made out. Accordingly these issues are decided in favour of the petitioners and against the respondents.
24.Relief:- In view of the above findings, the petition is allowed. Since probate can be granted to the executor only, hence letter of administration be issued in favour of petitioners as per Will for the properties as mentioned in the Will dated 28.1.00 respectively. It be accordingly granted after completion of required formalities in this context i.e. filing of requisite court fee, administration bond alongwith one surety bond of the amount of valuation in accordance with law. This file be consigned to record room.
Announced in the open court on (AJAY GOEL)
18.02.2013 ADJ-II(North)Delhi.
PC-131/11 Page No. 27/27