Delhi District Court
Ms. Geeta Roy vs The State on 15 December, 2012
IN THE COURT OF SH. A.K. CHAWLA : DISTRICT JUDGE (N)
DELHI
PC 43/07
Unique Case ID No.02401C0383652007
Ms. Geeta Roy
D/o Late Jyotindra Prasad Roy
Resident of N18, Ground Floor,
Malviya Nagar,
New Delhi 110 017. ..... Petitioner
Versus
1. The State
2. Mr. Amulya Kumar Roy
S/o Late Jyotindra Prasad Roy
Resident of 42, Deepali,
Pitampura
New Delhi 110 034. ..... Respondents
Date of Institution of the suit : 13.04.2007
Date of pronouncement : 15.12.2012
JUDGMENT
Petition is filed under Section 276 of the Indian Succession Act for grant of probate of Will dated 11.1.2007, purportedly executed PC43/07 Page 1/26 by Himanshu Kumar Roy (since deceased) hereafter referred to as 'the testator'.
2. Petition proceeds on the premise that the petitioner and the respondent no. 2 were the only surviving legal heirs, being the sister and brother respectively, of 'the testator' and that, 'the testator' died having signed and executed Will dated 11.1.2007 hereafter referred to as 'the Subject Will' and thereunder, the petitioner was beneficiary of all his movable and immovable assets. That, 'the testator' was the youngest of the four brothers and one sister, namely, Amulya Kumar Royrespondent no.2 (eldest brother); Himanshu Kumar Roythe deceased (youngest brother); Geeta Roythe petitioner (unmarried sister/spinster); Sudhir Kumar Roy (predeceased brother); and, Vimal Kumar Roy (predeceased brother). It is also averred that 'the testator' during his life time had purchased an agricultural land bearing khasra no.3/2, 4/2, 2/2, 4/1 and 24 min. situated at Bijwasan, Village Bijwasan, Tehsil Vasant Vihar, New Delhi hereafter referred to as 'the agricultural land' and by way of an agreement to sell dated 11.12.2006, and, agreed to sell the agriculture land to one Mrs. Rati Sawhney, for a total consideration of Rs.2,20,00,000/ and also handed over the possession to her against receipt of Rs.1,10,00,000/ and that, the PC43/07 Page 2/26 balance consideration was to be paid by Mrs. Rati Sawhney to 'the testator' at the time of registration of the sale deed. That, the petitioner and 'the testator' used to live together at N18, Ground Floor, Malviya Nagar, New Delhi, which came to their joint ownership under a family arrangement after the demise of their parents, whereas, the other brothers of 'the testator' went away to live elsewhere, having disposed off their respective flats and that, the said flat no. N18 was also mutated jointly in favour of the petitioner and 'the testator' by MCD, vide letter dated 20.9.1999. That 'the Subject Will' was prepared by Sh. Sudeep Cecil, Adv. under the instructions of 'the testator' and was read over to 'the testator'. That, 'the testator' signed the Will in the presence of Dr. Mrs. Jutika Roy and Sh. R.S.Rathore, who in turn signed the Will in the presence of 'the testator' and in each others' presence. Petitioner as such, has filed the petition seeking probate of 'the Subject Will'.
3. Notice of the petition was published in the newspaper 'Rashtriya Sahara' edition 25.12.2007 and the citation was issued. None appeared from the general public.
4. In the reply/objections filed, the respondent No.2, while PC43/07 Page 3/26 denying the assertions and the allegations made in the petition, took the objections viz. 'the testator' died intestate; witnesses on 'the Subject Will' were interested witnesses in as much as, the witness Ms. Jutika Roy was the divorced wife of the respondent no.2, whereas, the witness no. 2 was her paramour, who was the main cause of divorce of the respondent no.2 with Ms. Jutika Roy and that, 'the Subject Will' was fabricated by the petitioner in collusion with the witnesses, who had grudge against the respondent no.2; 'the testator' was suffering from diarrhea and pneumonia for about 4 days of his death and his condition was serious and was out of his senses and therefore, it was impossible for him to have executed 'the Subject Will'; 'the testator', who was employed as Captain with Great Eastern Shipping Company in the year 1982, was deaf (hard of hearing) and was dismissed from service for the said reason and since thereafter, was unemployed and wherever and whenever, 'the testator' was taken for treatment, the respondent no.2 always accompanied him and shared the expenses for his treatment and since the midnight of 1011.1.07, the condition of 'the testator' had gone bad to worst and could not improve inspite of the treatment given and thus, 'the testator' was admitted in the Nursing Home on 12.1.2007 and died the same day; and, the petitioner was a greedy lady and was attempting to grab and usurp all the properties of PC43/07 Page 4/26 'the testator' for her own wrongful gains, without caring to share amongst the heirs of 'the testator'; and, there were no cordial relations between the petitioner and 'the testator' and they were also having separate kitchens. Respondent no.2 as such, has prayed for the dismissal of the petition.
5. In the replication/rejoinder filed, the petitioner, while denying the assertions and the allegations made in the reply, has reiterated the averments and the assertions made in the petition.
6. On the pleadings of the parties, the following issues were framed :
(i) Whether the Will dated 11.1.2007 propounded by the petitioner is the duly executed last and final Will of late Shri Himanshu Kumar Roy in sound disposing mind? OPP
(ii) Whether the petitioner is entitled to the grant or probate of Will dated 11.1.2007?
OPP.
(iii) Relief.
PC43/07 Page 5/26
7. Petitioner in support of her case, examined herself as PW1; PW2 Ms. Jutika Roy; PW3 Sh. R.S. Rathore; and, PW4 Dr. M.M. Sharma and closed PE. Respondent in support of his case examined himself as RW1; RW2 Sh. K. C. Jain, Adv.; RW3 Dr. Anil Kumar Sharma; and, handwriting expert RW4 Sh. Syed Sarfraz Ahmed and closed RE.
8. PetitionerPW1 in her deposition by way of affidavit Ex.P1 deposed, as averred to in the petition. In addition thereto, she has also deposed that 'the testator' has been residing with the petitioner PW1 since 1985, till his death on 12.1.2007 at 9.30 p.m. and that, 'the testator' had cut off all his relationship with the respondent no. 2, way back in 1985 and since thereafter, was not in touch with the respondent no.2 in any manner, whatsoever. She also deposed that the respondent no.2 never shared any expenses either medical or otherwise on 'the testator', as 'the testator' had severed all his ties with the respondent no. 2 since 1985 and that, it was PW1 only, who shared cordial and harmonious relationship with 'the testator' and they lived and ate together, till the demise of 'the testator'. That, on 11.1.2007, 'the testator' had expressed his desire to execute a Will and that, the Will dated 11.1.2007 was prepared by Mr. Sushil Cecil , Advocate under PC43/07 Page 6/26 the instructions of 'the testator' and the same was read over to 'the testator'. That, 'the testator' signed the Will in presence of Dr. Ms. Jutika Roy and Sh. R.S. Rathore, who in turn signed and attested the Will in the presence of 'the testator' and in each other's. She has also deposed for the Will having been executed by the testator in her presence. That, 'the testator' was in full senses and good mental condition till the time, he was admitted to North Point Hospital on 12.1.2007 at 10.30 a.m. and that, she had accompanied 'the testator' for his routine medical check up to Dr. Kripa Ram Gayatri Devi Multispeciality Medical and Dental Clinic on 9.1.2007, when 'the testator' was examined by Dr. M.M. Sharma and thereafter, 'the testator' had come back home and that, the out patient card, clearly showed that 'the testator' was not suffering from any serious ailment at that time. That, 'the testator' was in good condition till the night of 11.1.2007, whereafter, he started having loosemotions in the night and when he did not come under control, she took 'the testator' to Northpoint Hospital, Panchsheel Park in the morning of 12.1.2007 at 10.30 a.m. and even at that time, 'the testator' was in his complete senses and that, 'the testator' breathed his last, at 9.30 p.m. on 12.1.2007. In her oral testimony, she also deposed that the certificate issued by Great Eastern Shipping Company; Will dated 11.1.2007 and PC43/07 Page 7/26 the out patient card of 'the testator', which were put Exs.PW1/1 to PW1/3 in her affidavit to be read as MarkA to C, respectively. She also deposed that the photocopy of death summery of 'the testator', which was put Ex.PW1/4 in her affidavit, be read as markD and that, the death certificate of 'the testator' was Ex.PW1/1.
PW2 in her deposition by way of affidavit Ex.P2 deposed that she was a witness to the Will dated 11.1.2007. She also deposed that she had known 'the testator', who was resident of N18, Ground Floor, Malviya Nagar for the last over 50 years, as she was divorced from 'the testator''s elder brother A.K. Roythe respondent no.2. That, she had been in touch with the petitioner and 'the testator' even after her divorce and that, they shared great love and affection for each other and she used to regularly visit the petitioner and 'the testator', at their house at N18, Malviya Nagar, Delhi. That on 11.1.2007, when she had gone to visit 'the testator' and the petitioner, 'the testator' had expressed his willingness to execute a Will in respect of his immovable and movable properties and that, thereafter, she took 'the testator' and the petitioner to the house of Sh. R.S. Rathore, the other attesting witness to the Will and there, 'the testator' signed the Will in his presence and in the presence of Sh. R.S. Rathore. That, she and Sh. R.S. Rathore in turn signed the Will as witnesses, in the presence PC43/07 Page 8/26 of 'the testator' and in each other's presence. In her oral testimony, she also deposed that the Will dated 11.1.2007 executed by 'the testator' in her presence and in the presence of other witness R.S. Rathore, was Ex.PW2/1 and was bearing the signatures of 'the testator' at pt. A and that of Sh. R.S. Rathore at pt. B and her signatures were appearing at pt.C. She also deposed that they all signed in each other's presence and that, 'the testator' was having sound disposing state of mind at the time of execution of the Will. PW2 as such, deposed for being an attesting witness to the Will.
PW3 in his deposition by way of affidavit Ex.P3 deposed that he knew 'the testator', who used to reside at N18, Ground Floor, Malviya Nagar, Delhi, through Dr. Mrs. Jutika Roy, who happened to be his family friend. That, on 11.1.2007, 'the testator', the petitioner and Dr. Ms. Jutika Roy came to his house and Dr. Jutika Roy told him that 'the testator' had expressed his willingness to execute a Will in respect of his immovable and movable properties and that, Dr. Jutika Roy and 'the testator' requested him to be a witness to the Will of 'the testator' and in pursuance thereof, 'the testator' signed the Will in his presence and in the presence of Dr. Jutika Roy. He also deposed that Dr. Jutika Roy and he himself signed the Will as witnesses in the presence of 'the testator' and in each other's presence and identified the PC43/07 Page 9/26 signatures of 'the testator' on the Will at pt. A, as 'the testator' had signed in his presence and that, the signatures of Dr. Jutika Roy, who signed as a witness, were at pt. C. He also deposed that 'the testator' was in good health and sound mental condition on the date and time on the signing of the Will. PW3 as such, deposed for being another attesting witness to the Will.
Dr. PW4 deposed that he was working with Phoolwati Jain Charitable hospital at C4/141, SDA, New Delhi and met 'the testator' at the said hospital, as 'the testator' was a regular patient and that, the said hospital had started in Malviya Nagar and 'the testator' used to come at both the places for his regular treatment. That, 'the testator' was having problem of Hernia for three years prior to his death and had undergone surgery and recovered well. He also deposed that he had examined 'the testator' for the last time on 9.1.2007 and that, the OPD card of 'the testator' bearing his signatures at pt. A was Ex.PW4/1 and that, on that day, 'the testator' had come for his routine check up.
9. Respondent no.2 appeared as RW1 and in his deposition by way of affidavit Ex.R1, deposed that the petition was based on the Will dated 11.1.2007, which was forged and fabricated after the death of 'the testator', forging his signatures and that, it was sham and bogus. PC43/07 Page 10/26 That, 'the testator' was not in sound and disposing mind on 11.1.2007, when 'the Subject Will' came to be executed. That, 'the testator' was bed ridden for a long time prior to his death on 12.1.2007 and his sense of seeing, understanding, hearing, comprehending and communicating was seriously impaired, on account of his long illness and medication. That, it was impossible for 'the testator' to convey his feelings and thoughts, read and write or sign. That, 'the Subject Will' was prepared after the death of 'the testator' to grab and usurp his entire estate. That, 'the testator' did not execute any Will during his lifetime and that, the attesting witnesses cited on the Will were interested witnesses. That, witness Jutika was his divorced wife and the other witness, was her paramour, who was the main root for his divorce with Ms. Jythika Roy and therefore, 'the Subject Will' was a collusive document and was fabricated by the petitioner in conspiracy with the attesting witnesses, who had a grudge against him. That, 'the testator' was suffering from diarrhea and pneumonia for the last four days prior to his death and his conditions was serious and was not knowing what was going around him and therefore, it was impossible for him to execute 'the Subject Will' and that, 'the Subject Will' was a forged and fabricated document. That, 'the testator' was employed as a Captain with Great Eastern Shipping Company in 1982 and was deaf (hard of hearing) and for that PC43/07 Page 11/26 reason, was dismissed from the service and since then, was unemployed. That, RW1 always accompanied 'the testator', wherever, 'the testator' went and shared the expenses on his treatment, being the real brother and that, the condition of 'the testator' had gone bad to worst every moment, since the midnight of 10.11.07 and that, inspite of the treatment given by the family doctor, as also the doctors at nursing home, the condition of 'the testator' did not improve and therefore, he was admitted in the Nursing Home on 12.1.2007, where he breathed his last on the same day. That, the petitioner was a greedy lady and was wanting to grab and usurp all the properties of 'the testator' for herself, without caring to share amongst the other heirs of 'the testator'. That, there were no cordial relations between the petitioner and 'the testator' and they were having separate kitchen. That, a family settlement had already taken place in the year 1979, vide letter dated 9.11.1979 of the Ministry of Housing (L&DO) office. That, the respondent no.2RW1 and 'the testator' had very good and cordial relations with each other and that, 'the testator' had executed a registered General Power of Attorney dated 23.1.1981 in his favour and the same was never canceled. That, the petitioner had secretly applied to Tehsildar Bijwasan, Delhi for mutation of the land of 'the testator' in her favour on 22.2.2007 and the same was challenged by PC43/07 Page 12/26 RW1. That, father of RW1 had also executed a deed of disclaimer dated 5.1.1978. In his oral testimony, he also deposed that a family settlement had taken place between him and his brother in the year 1979 and the photocopy of the memorandum dated 9.11.1979 issued by the Dy. L&DO was marked RW1/A. That, the copy of the GPA executed by 'the testator' in his favour was mark RW1/B. That, the petitioner had applied for mutation of the land of 'the testator' and he had sent reply dated 21.3.2007 to Tehsildar, Bijwasan and the copy of the same was Ex.RW1/1. That, the copy of the deed of the disclaimer dated 5.1.78 executed by his father was mark RW1/C. Respondent RW1 as such, deposed to prove that 'the Subject Will' was forged and fabricated.
RW2 deposed that he was a practicing Advocate for the last 14/15 years and that, the original Will Ex.PW2/1 was though bearing rubber stamp of his name and his registration no. A 24/97 at pt. X, but, it was not his rubber stamp and that, the rubber stamp of his name at pt. Y and the other rubber stamps showing "Attested, Notary, Delhi" at pt. Z were not his and that, the Will Ex.PW2/1 also did bear his signatures at pt. Z1. He also deposed that the seal and the rubber stamp put on Ex.PW2/1 are not his and that, somebody had got his stamp prepared and affixed the same on the Will. RW2 as such PC43/07 Page 13/26 deposed to say that 'the Subject Will' was not notarised by him and the rubber seals and the signatures of the notary appearing on it, were forged and fabricated.
Dr. RW3 deposed that he was working with Northpoint Hospital, Panchsheel Park and brought the file pertaining to 'the testator', who was admitted in the said hospital on 12.1.2007. He deposed that the concerned form was filled by 'the testator''s sister Ms. Geeta Roy and that, the copy of the indoor admission form was Ex.RW3/1; copy of concerned form was Ex.RW3/2; photocopy of history sheets (6 pages) was Ex.RW3/3 (colly); and that, the computerized copy of death summary was Ex.RW3/4. RW3 also deposed that the dead body of 'the testator' was handed over to his sister Ms. Geeta Roy and that, the death summary was given to the relative of the patient at the time of handing over the dead body. He also deposed that 'the testator' died at about 9.30 p.m. and the dead body was handed over to Ms. Geeta Roy on the same day. He also deposed that the blood and stool of the patient were tested and all the reports were handed over to Ms. Geeta Roy and that, the copy of the laboratory report was Ex.RW3/5. That, when the patient Himanshu Kr. Roy was admitted in the hospital, he was sick and as per the history given by the patient, he was having loosemotions, dark colour PC43/07 Page 14/26 and that, when he started treating the patient, there was no vomiting and that, he could not say, as to the reason, the loosemotions were having dark black colour. That, the dark colour may be on account of internal bleeding and that, the endoscopy of the patient was not conducted, as the consent was taken for the next day, on account of patient being not fit for endoscopy on that day. That, the consent for endoscopy was obtained from relative Ms. Geeta Roy and not the patient and that, the patient died on the same day. That, the patient Himanshu Kr. Roy was conscious and was fit to give his consent, but, it was not necessary that the consent of the patient himself should be obtained in advance. That, "Stool for Occult blood +++", as mentioned in the summary Ex.RW3/4 meant that there was significant bleeding inside Gl track and that, the bleeding was not visible with naked eyes. That "+++dehydration" and "+++ Pallor" are significant and that, patient came with multiple problems, as mentioned in the history sheet and the death summary and that, taking one symptom out of the entire history, it could not be said as to whether, one particular disease was significant or the other. That, the patient was having weakness and low urine output for two days and that, the said history was given by the patient himself and that, the urine test of the patient was not got done, as the patient had passed urine only once in the bed PC43/07 Page 15/26 and thereafter, he did not pass urine and that, both kidneys of the patient were not functioning normally. That, the condition of the patient was critical and that, the word "toxic" mentioned in the death summary meant, the patient was sick. That, it was difficult to specify any definite period, for which the patient was suffering from the disease and that, it depends on case to case and the condition and the health of the patient, but, in the history of the patient, it was clearly mentioned that he was suffering for four days. That, he could not say, as to whether the patient could travel distance of 14 k.m. on 11.1.07.
RW4 is the handwriting expert, who tendered in evidence his affidavit Ex.RW4/A and proved his handwriting report Ex.DW2/1 and the two photographs alongwith two negatives Ex.DW2/2. As per his deposition and the report, the signatures appearing on the Will did not tally with the admitted signatures on the cehques of 'the testator'.
10. I have heard the ld. counsel for the parties and perused the record carefully.
11. My issuewise findings are as under :
PC43/07 Page 16/26
ISSUE NO.1 Whether the Will dated 11.1.2007 propounded by the petitioner is the duly executed last and final Will of late Shri Himanshu Kumar Roy in sound disposing mind? OPP 'The testator', who, as per the history sheet Ex.RW3/3 and the death summary Ex.RW3/4, was suffering from fever, cough, chest pain, loose motions for the last four days and weakness and low urine output for two days and was admitted in the hospital at 10.30 a.m. on
12.1.07 and died the same day i.e. 12.1.2007 at 9.30 p.m., is said to have executed 'the Subject Will' Ex.PW2/1, a day before his death i.e. 11.1.2007. It is a notarized Will. As per the propounder of the Will i.e. the petitioner, who is the beneficiary under the Will and appeared as PW1, 'the Subject Will' was executed by 'the testator' in her presence and in the presence of the attesting witnesses, who have appeared as PW2 and PW3. PetitionerPW1 is the sister of 'the testator' and as per her version, 'the testator', who was her elder brother and a bachelor, have been residing together at N18, Ground Floor, Malviya Nagar, New Delhi, which flat had come in her joint ownership with 'the testator', under a family arrangement arrived at, after the demise of their parents. Also, as per the version of petitioner PW1 in her deposition by way of affidavit Ex.P1, 'the testator' had cut PC43/07 Page 17/26 off all his relationships with the respondent no.2 way back in 1985 and that, the petitioner and 'the testator' lived and ate together till the demise of 'the testator'. 'The Subject Will' has however, come to be executed only a day before the death of 'the testator', in the condition abovesaid. As regards the execution of 'the Subject Will', PW1 in her deposition by way of affidavit Ex.P1, has deposed that on 11.1.2007, 'the testator' had expressed his desire to execute the Will and that, the Will dated 11.1.2007, was prepared by Sh. Sudeep Cecil, Advocate under the instructions of 'the testator' and was read over to 'the testator'. Sh. Sudeep Cecil, Adv., who, as per the deposition of PW1, prepared 'the Subject Will' on the instructions of 'the testator', for the reasons unexplained, is however, neither examined by the petitioner nor 'the Subject Will' records anything for 'the Subject Will' having been either prepared or having been read over to 'the testator' by Sh. Sudeep Cecil, Adv. Be that as it may, as per the deposition of the petitionerPW1, a day before his death, 'the testator' expressed the desire to execute a Will and on the same day, the Will came to be prepared by the Advocate, under the instructions of 'the testator'. It is a computer generated print out. Where was it so generated? During cross, PW1 says that 'the Subject Will' was typed in the house of Sh. R.S. Rathore, who is none else but an attesting witness to 'the Subject PC43/07 Page 18/26 Will'. Did the Advocate Sudeep Cecil accompany 'the testator' and the petitioner to the house of the said attesting witness R.S. Rathore and there, on the instructions of 'the testator', he prepared the Will at the house of said attesting witness R.S. Rathore, neither the petitioner PW1 nor the attesting witnesses have deposed so. The attesting witness PW2, who is the divorced wife of the objector/respondent no. 2, in her deposition by way of affidavit, as regards the execution of 'the Subject Will', has deposed as under :
"4. I say that on 11.1.2007, when I had gone to visit the Deceased Testator and the Petitioner, the Deceased Testator expressed his willingness to execute a Will in respect of his immovable and movable properties. Thereafter, I took the deceased testator and the Petitioner to the house of Mr. R.S. Rathore, the other attesting witness to the Will, where the Deceased Testator signed the Will in my presence and in the presence of Mr. R.S. Rathore.
5. I further say that I and Mr. R.S. Rathore in turn signed the Will as witnesses in the presence of the Deceased Testator and in the presence of each other. I identify the signatures of the Deceased Testator on the Will at point 'A" as he signed in my presence and I also identify the signatures of Mr. R.S. Rathore at point "B", who signed the Will as a witness."
The abovesaid deposition, no way even suggests that when PC43/07 Page 19/26 the attesting witness PW2 accompanied 'the testator' and the petitioner to the house of the other attesting witness PW3 Sh. R.S. Rathore, Sh. Sudeep Cecil, Adv. had accompanied them nor does the petitioner PW1 or the other attesting witness PW3, have deposed so. Who then called for Sh.Sudeep Cecil, Adv. and where did he arrive and as to whether 'the Subject Will' was prepared by said Sh. Sudeep Cecil, Adv. on the instructions of 'the testator', there is no worthwhile evidence. Suffice to say, neither the attesting witness PW2 nor the other attesting witness PW3 have deposed for 'the Subject Will' having been drafted and/or read over by Sh. Sudeep Cecil, Adv. to 'the testator', in their presence. Then, PW2 and PW3, have only deposed for 'the Subject Will' having been executed by 'the testator' in their presence. In their depositions, there is not even an iota of any reference that at the time of such execution, either the petitioner or Sh. Sudeep Cecil, Adv. was present there. Interestingly, the attesting witness PW3 in his deposition by way of affidavit Ex.P3, as regards the execution of 'the Subject Will', has deposed as under :
"3. I say that on 11.01.2007, Deceased Testator, the Petitioner and Dr. Mrs. Jutika Roy came to my house when Dr. Mrs. Jutika Roy told me that the Deceased Testator had expressed his willingness to execute a Will PC43/07 Page 20/26 in respect of his immovable and movable properties. Dr. Jutika Roy and the Deceased Testator requested me to be a witness to the Will of the Deceased Testator, pursuant to which the deceased Testator signed the Will in my presence and in the presence of Dr. Mrs. Jutika Roy.
4. I further say that I and Dr. Mrs. Jutika Roy in turn signed the Will as witnesses in the presence of the Deceased Testator and in the presence of each other. I identify the signatures of the Deceased Testator on the Will at Point 'A" as he signed in my presence and I also identify the signatures of Dr. Mrs. Jutika Roy at Point 'C', who signed the Will as a witness."
As per the abovesaid deposition of the attesting witness PW3, 'the testator' had accompanied the other attesting witness PW2 to his house and both of them had simply requested him to be a witness to the Will of 'the testator'. In other words, till the time, both 'the testator' and the other attesting witness, reached the house of PW3, PW3 was not even aware of the purpose of their visit to his house. During cross, PW3 has then also deposed that the Will was only printed at his house. In other words, 'the testator' had not given any instructions to the Advocate either in his presence or at his instance. Deposition of PW3 as such, is only to the effect that 'the testator' accompanied with the other attesting witness PW2 had come to his house and there, at his house, 'the Subject Will' was printed and there, PC43/07 Page 21/26 'the testator' signed and executed 'the Subject Will' in each others' presence. Let it be so. PW3 has signed 'the Subject Will' as an attesting witness. Was he a person, with whom 'the testator' was having any friendly terms so that 'the testator' would repose full confidence in him for the purpose? Said PW3 during cross, on this vital aspect, on a suggestion, deposed that he did not know 'the testator', only to depose again, that he knew 'the testator' since the year 1980 and that, 'the testator' had visited his house on one or two occasions. Let the improved version of PW3 be taken to be true, but, the fact that during the period from 1980 till the purported execution of the Will in July, 2011 i.e. in a period of almost 31 years, 'the testator' visited him only on one or two occasions, by itself, is indicative of the fact that 'the testator' was not having any close acquaintance much less being on any friendly terms. Cross of PW3, only goes to show that he was a better acquaintance of the other attesting witness PW2, who was a Doctor and the Medical Incharge of CGHS dispensary, of which PW3 was a beneficiary. During cross, PW3 has deposed that he knew the other attesting witness PW2 since the year 1977, but then, also went on to deny the suggestion that he knew her husband Sh.A.K. Roy. Interestingly, said A.K. Roy is none else, but, the divorced husband of the other attesting witness PW2. Is it not then to be taken that PW3 PC43/07 Page 22/26 joined to sign as a witness to 'the Subject Will' only at the instance of PW2 and not at the instance of 'the testator'? All circumstances suggest that only. Estranged wife of objector/respondent no.2, wishing ill of him and being instrumental in the preparation of 'the Subject Will', therefore, can not be ruled out. Be that as it may, in the given facts and circumstances, in my considered view, PW2 cannot be said to be an independent witness to 'the Subject Will''. So, would follow for PW3.
'The Subject Will' is having the photograph of 'the testator' affixed on it and is also notarized. Attesting witness PW2 during cross, has deposed that 'the Subject Will' was not notarized in her presence, whereas, PW3 during cross, has deposed that photograph of the deceased was not pasted on 'the Subject Will' at the time of signing of the Will, whereas, during cross, he has also deposed that he could not say, as to when, was the Will notarized. As per their such depositions, 'the Subject Will' was neither having the photograph of 'the testator' affixed on it nor was it notarized at the time of its execution. Notarization is by the affixation of seals in the name of K.C. Jain, Notary Public. Sh. K.C. Jain, Adv. has appeared as RW2 and has categorically deposed that 'the Subject Will' does not bear either his seals or his signatures. In other words, the rubber stamps PC43/07 Page 23/26 and his signatures appearing on the Will are forged and fabricated. The petitioner, who is the propounder of 'the Subject Will' on her part has utterly failed to explain due notarisation of 'the Subject Will' or belie the testimony of RW3. It is thus, well established that 'the Subject Will' is fudged.
As per the depositions of the attesting witnesses, as also the petitionerPW1, 'the Subject Will' came to be executed around 4.30/5.00 p.m. on 11.1.2007. 'The testator' died the very next day i.e. 12.1.2007, having been admitted in the hospital at about 10.30 a.m. As said earlier, 'the testator' was admitted in the hospital with the history of fever, cough, chest pain, loose motions for the last four days and weakness and low urine output for two days. In such sick condition, 'the testator' having accompanied the petitioner and PW2, who is none else, but, the divorced wife of the objectorrespondent no. 2, to the house of PW3, who is in fact an acquaintance of PW2 rather than 'the testator' and having executed 'the Subject Will', in my considered view, is shrouded by serious suspicion, for its due execution in a sound disposition of mind by 'the testator'. Here, it is also worthwhile to note that none of the attesting witnesses PW2 and PW3 have deposed for 'the Subject Will', which, as per the deposition of petitionerPW1, was prepared by Sh. Sudeep Cecil, Advocate, PC43/07 Page 24/26 having been signed by 'the testator', on reading its contents, implying thereby, having understood its contents. There is thus, no cogent evidence on record that the testator signed 'the Subject Will', having read and understood its contents.
The handwriting expert RW4 proving his report Ex.RW4/1, has also opined that the signature on 'the Subject Will' not tallying with the admitted signatures of 'the testator'. To rebut such opinion, the petitioner has not led any cogent evidence. In the written submissions filed, though it is submitted that the signatures on the Will are compared with the signature on a complete blank cheque, without date and amount and that, it also does not mention as to who has issued it, there is nothing on record, much less a suggestion, that RW4 did not make comparison with admitted signatures of 'the testator'. Mere contention raised to the contrary is therefore, of no avail to the petitioner.
In totality of the given facts and circumstances, I am of the considered view that the petitioner has miserably failed to prove that 'the Subject Will' was signed and executed by 'the testator' in his sound disposition of mind. Consequently, the issue in hand is answered in the negative.
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ISSUE NO.2 :
Whether the petitioner is entitled to the grant or probate of Will dated 11.1.2007? OPP.
As a consequence of the finding on issue no.1, the issue in hand is also answered in the negative.
RELIEF:
Petition is dismissed.
Announced in the open Court (A.K. Chawla)
th
on 15 day of December, 2012 District Judge (North)
Delhi
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