Delhi District Court
Shri Sudhir Malik vs State on 20 August, 2011
IN THE COURT OF SH. A.K. CHAWLA : DISTRICT JUDGE
(NORTH) : DELHI
PC 124/06
Unique Case ID No.02401C6045702004
Shri Sudhir Malik
S/o Late Wing Cdr. Y.L. Malik
R/o C251, Defence Colony,
New Delhi 110 024. ..... Petitioner
Versus
1. State
2. Smt. Subhashini Sood
D/o Late Wing Cdr. Y.L. Malik
R/o C251, Defence Colony,
New Delhi.
3. Smt. Sushma Gupta
W/o Sh. S.L. Gupta
D/o Late Wing Commander Y.L. Malik
R/o 79, S.F.S. Flats, Munirka Vihar,
Delhi.
4. Smt. Shashi Salooja
W/o Late Sh. S.C. Salooja
D/o Late Wng. Com. Y.L. Malik
R/o B97, Niti Bagh, First Floor,
New Delhi.
PC124/06 & 135/06 Page 1/38
5. Sh. Karan Sudhir Malik
S/o Sudhir Malik,
r/o C251, Defence Colony,
New Delhi. ..... Respondents
Date of Institution of the suit : 11.10.1999
Date of reserving the judgment : 02.08.2011
Date of pronouncement : 20.08.2011
AND
PC 135/2006
Unique Case ID No.02401C6045662004
1. Smt. Subhashini Sood
D/o Shri Y. L. Malik
R/o C251, (Ground Floor) Defence Colony
New Delhi110003.
2. Smt. Sushma Gupta
W/o Shri S.L. Gupta,
R/o C251, (Ground Floor)
Defence Colony,
New Delhi 110 003.
AND
R/o 79, S.F.S. Flats, Munirka Vihar,
New Delhi. ..... Petitioners
Versus
PC124/06 & 135/06 Page 2/38
1. State
2. Smt. Shashi Salooja
W/o Shri S. L. Salooja
R/o B97 (First Floor)
Niti Bagh, New Delhi 110 049.
3. Shri Sudhir Malik
S/o Shri Y. L. Malik
R/o C251, (First Floor),
Defence Colony, New Delhi 110 003. ..... Respondents
Date of Institution of the suit : 30.11.1999
Date of reserving the judgment : 02.08.2011
Date of pronouncement : 20.08.2011
JUDGMENT
Vide this common judgment, I proceed to dispose off two petitions viz. PC No.124/06 titled Sudhir Malik Vs. State & Ors. and PC No.135/06 titled Subhashini Sood Vs. State & Ors., which were consolidated vide order dated 31.7.06 and common issues framed. In both the petitions, the respective Wills of Ms. Vina Malik (since deceased) hereinafter referred to as 'the deceased' are in question.
2. At the outset, it may be noted that the parties in both the PC124/06 & 135/06 Page 3/38 petitions originally filed, are the son and three daughters of 'the deceased' namely, Sudhir Malik hereafter referred to as 'Sudhir'; Ms. Subhashini Sood hereafter referred to as 'Subhashini'; Ms. Sushma Gupta hereafter referred to as "Sushma'; and Ms. Shashi Salooja hereafter referred to as 'Shashi'. Sh. Karan Sudhir Malik hereafter referred to as 'Karan' was impleaded as a party in the array of the respondents on an application filed by him and granted by the Court.
3. Petition PC No.135/06 filed by Sudhir proceeds on the premise that 'the deceased', who was the owner of property No.C251, Defence Colony, Delhi hereinafter to as 'the said property', died at Delhi on 18.8.1999, having executed Will dated 13/14.5.1993 registered in the office of the Subregistrar on 3.2.1994, hereinafter referred to as 'the earlier Will'. 'The earlier Will' is averred to have been executed by 'the deceased' voluntarily, without any pressure and in sound mind and health. Referring to the contents of 'the earlier Will' in the petition, Sudhir has averred that Subhashini had taken possession of the ground floor of 'the said property' and threatening to create third party interest. Details of the estate of 'the deceased' are detailed in Annexure 'A' to the petition. In the objections/reply filed, PC124/06 & 135/06 Page 4/38 Subhashini, while denying the assertions made in the petition, took the preliminary objections viz. 'the earlier Will' stood revoked by a later registered Will dated 13.12.94 hereinafter referred to as 'the later Will' and therefore, the petition was not maintainable; petition was not verified in the form prescribed U/s 280 of the Succession Act; list of properties and valuation was not in accordance with the Schedule III of the Court Fees Act; and that separate petition for probate of Will dated 13.12.94 shall be filed. On merits, reiterating that 'the earlier Will' stood revoked by the later Will dated 13.12.1994, Subhashini also took the plea that she has been administering the estate since 1988 and was in a better position to be appointed as executor in case of grant of Letters of Administration in her favour. Sushma in the objections/reply filed, adopted the objections/reply of Subhashini. In the rejoinder filed, Sudhir, while denying the assertions made by Subhashini and Sushma and reiterating the assertions made in the petition, alleged that the Will dated 13.12.1994 was executed by fraud, misrepresentation, coercion and threat by Subhashini, in connivance with Sushma and Shashi. Sudhir also alleged that Subhashini was having physical control over 'the deceased', who could not face Subhashini in any manner and taking benefit of physical control, PC124/06 & 135/06 Page 5/38 Subhashini forced 'the deceased' to put her signatures and thumb impression on 'the later Will'. Also according to Sudhir, 'the deceased' had certified such fact of misrepresentation and threat by Subhashini, Sushma and Shashi by getting a note written during her life time, from her sister's son Sh. Vijay Ratra on 6.2.1998. Sudhir has also alleged that 'the deceased' was not in a position to go out, without the consent of Subhashini and was completely confined in the house and in the circumstances, taking opportunity, the deceased had called Sh. Vijay Ratra and explained to him and asked him to write the fact of the alleged Will dated 13.12.1994 and that, the said note was signed by the deceased on 6.2.1998 duly witnessth by the writer Sh. Vijay Ratra. Shashi in the separate objections filed, took the similar plea of revocation of 'the earlier Will' by 'the later Will'. Karan, who is the son of Sudhir and came to be impleaded in the array of respondents on an application filed by him U/o 1 R.10 CPC, in the objections/reply filed, took the plea that 'the said property' was HUF property, of which he was a coparcener and he had already challenged the testamentary capacity of 'the deceased' to execute the Will in question by way of Suit No. 1424/01 titled Karun Sudhir Malik Vs. Cpt. Sudhir Malik & Ors. before the Hon'ble High Court. In view of the fact that this Court PC124/06 & 135/06 Page 6/38 is a Probate Court, any question of title of the said property, is irrelevant in the proceedings and therefore, the various pleas raised by Karan, as regards the said property being an HUF property, are irrelevant and do not invite any reference. Reply filed by Sudhir, who is none else but the father of Karan, supports, what is stated to by Karan in the objections.
4. PC No.135/06 was instituted by Subhashini and Sushma seeking Letters of Administration in respect of the estate left behind by 'the deceased' propounding 'the later Will'. It proceeds on the same premise that 'the earlier Will' came to be revoked by 'the deceased' by 'the later Will'. What was the plea in defence in the petition of Sudhir, is the case of Subhashini and Sushma in their petition. To buttress their such plea, they also say that ever since 1988, Subhashini was residing with 'the deceased' on the ground floor and till about March, 1999, the only son of 'the deceased'Sudhir was resident of Bombay and thus, unable to assist the deceased during her lifetime, for the management of her estate. Also according to them, Subhashini was assisting the deceased during her lifetime in the management of her estate since 5.4.1988, when the husband of 'the deceased' died and that, PC124/06 & 135/06 Page 7/38 as the health of the deceased deteriorated, Subhashini has been managing the estate for several years during lifetime of 'the deceased' and for the purpose, Sushma also assisted and therefore, Subhashini was in a position to administer the estate of the deceased even after the demise of 'the deceased' and that, it was Subhashini only, who paid property tax to MCD and the other bills. Also according to them, Sushma has been casually residing on the ground floor off and on, since early 1999 and particularly, after the death of the deceased on 18.8.1999. Thus, Subhashini and Suhma in the petition filed, assert that they were in a better position to administer the estate of 'the deceased', for the execution of 'the later Will'. Shashi in the reply/objections filed by her, while supporting the assertions of Subhashini and Sushma as regards the due execution of 'the later Will', averred that all the daughters of 'the deceased', were resident of Delhi and have been helping and assisting 'the deceased' in managing all her affairs including the management of her estate. Shashi also stated that 'the deceased' was enjoying good health and managing her estate by herself and that, Subhashini being the divorcee, started living with her mother, when separated from her husband, on the ground floor and that, all the beneficiaries of the Will, were required to be appointed as PC124/06 & 135/06 Page 8/38 Administrators. In the rejoinder filed, the petitioners clarified that after separation from her husband, Subhashini was living elsewhere and that, she came to live with, and assist 'the deceased' in 1988, after her father's death. Sudhir in the objections/reply filed took preliminary objections viz. petition was filed on the basis of a Will fraudulently procured by the petitioner, by misrepresentation, coercion and undue influence upon 'the deceased'; petition did not disclose any cause of action; petition was liable to be rejected U/o 7 R.11 CPC; petitioners had not approached the Court with clean hands and that, Sushma was not resident of 'the said property'; the petition was liable to be dismissed, as the value of the movable and immovable property of 'the deceased' was incorrect; and that, after the death of 'the deceased', Subhashini had taken forceful and illegal possession of the ground floor of 'the said property' and thereby, committed an offence of trespass. On merits, while denying the assertions of the petitioners that 'the earlier Will' was revoked by 'the deceased' by 'the later Will', alleged that 'the later Will' was not executed by 'the deceased' out of her free will and that, Subhashini and Sushma had coerced and played fraud upon 'the deceased' and got 'the later Will' executed from her. Sudhir has then also reiterated for the letter dated 6.2.1998 having PC124/06 & 135/06 Page 9/38 been written by 'the deceased'. Sudhir has then also alleged that Subhashini and Sushma had obtained signatures of 'the deceased' on blank papers, with an intent to falsely claim a share in 'the said property'. Also according to Sudhir, Subhashini had physical and psychological control over 'the deceased' and was in a position to dictate terms to her and that, taking advantage of the situation, she forced 'the deceased' to put her signatures and thumb impression on 'the later Will'. While denying that Subhashini was residing with 'the deceased' ever since 1988 on the ground floor of 'the said property', Sudhir states that Subhashini was living nearby, in a rented house at A340, Defence Colony and during illness of 'the deceased', moved into the ground floor temporarily and taking undue advantage of 'the deceased' weaknesses and his stay at Mumbai, procured 'the later Will' by misrepresentation, fraud, coercion and threat, in connivance with Sushma and Subhashini. Thus, according to Sudhir, 'the later Will' was not a valid and legal Will in the eyes of law and that 'the earlier Will' propounded by him, ought to prevail over 'the later Will'. In the rejoinder filed, Subhashini and Sushma have then said that, on the death of their father Wg. Cdr. Y.L. Malik, 'the said property' had devolved upon the widow and the children in equal shares but the PC124/06 & 135/06 Page 10/38 children of 'the deceased' had executed relinquishment deed dated 23.9.88 in favour of 'the deceased' and therefore, it was, quite natural for 'the deceased', to bequeath 'the said property' back to all her children in her Will but Sudhir by misrepresentation, false promises, coercion and undue influence on 'the deceased', obtained 'the earlier Will' in his favour and got it registered but thereafter, went back on his promise to look after his old and ailing mother i.e. 'the deceased' and returned back to Bombay, with his wife and the children and settled there again. Thus, according to Subhashini and Sushma, when 'the deceased' realized the deceit practiced by Sudhir, she got prepared the later Will', which was duly executed and registered and that, there was no question of any misrepresentation, coercion, undue influence and fraud by them. As for the letter dated 6.2.1998, Subhashini and Sushma allege that it was fabricated for the benefit of Sudhir, after the numerous adjournments taken by Sudhir. According to them, there was wedding of Sanjay Saluja, son of Shashi on 4.2.1998 and on 6.2.1998, 'the deceased' was resting in her own house and there was no occasion for Vijay Ratra to visit her and, had he visited her, Subhashini, who was staying with 'the deceased', would have known about it. Subhashini and Sushma also allege that Vijay Ratra had PC124/06 & 135/06 Page 11/38 informed everybody that he was leaving back for Bombay on 5.2.1998 and had actually left the house on that day and did not attend the wedding reception on 5.2.1998 and therefore, the letter dated 6.2.1998 was a fabricated letter.
5. On the pleadings of the parties, following common issues came to be framed :
(i) Whether the Will dated 13/14.05.1993, propounded by Sh. Sudhir Malik is the duly executed last and final Will and testament of late Smt. Veena Malik in sound physical and mental state of mind? Onus placed on Sh. Sudhir Malik.
(ii) Whether the Will dated 13.12.1994, propounded by Smt. Subhashini Sood and Sushma Gupta is the duly executed last and final Will of Smt. Veena Malik in sound physical and mental state of mind? Onus placed on Smt. Subhashini Sood and Smt. Sushma Gupta.
(iii) Whether the Will dated 13/14.05.1993 stands revoked by subsequent Will dated 13.12.1994, allegedly executed by late Smt. Veena Malik?
Onus placed on Smt. Subhasini Sood and Smt. Sushma Gupta.
(iv) Relief PC124/06 & 135/06 Page 12/38
6. In PC No.124/06, in support of his case, petitioner examined PW1 Gp. Capt. (Retd) Ved Kumar; himself as PW2; PW3 Sh. Ajit Singh and closed PE. PW1 in his evidence by way of affidavit Ex.P1 deposed that he was the family friend of husband of 'the deceased', he knew 'the deceased' and that, 'the deceased' executed her last Will & Testament dated 13.5.1993 on 14.5.1993 in his presence and in the presence of one Mrs. Wig, who was also the attesting witness alongwith him and that, the said Will was Ex.PW1/1 was signed by 'the deceased' at pts. A1 to A4 and his signatures were at ptrs. B and that of Mrs. Wig at pts. C. He also deposed that he could identify the signatures of Mrs. Wig, as he had seen her signing the said Will. He also deposed that 'the deceased' affixed her signatures in his presence and in the presence of Mrs. Wig and thereafter, both of them affixed their signatures in the presence of 'the deceased' and in the presence of each other. He also deposed for 'the deceased' was in sound and disposing mind at the time, she executed the Will dated 13.5.93 on 14.5.93. He also deposed that after the Will was executed by 'the deceased' on 14.5.93, was presented for registration before the office of the Subregistrar on 3.2.94 in his presence and in the presence of Mrs. Wig and at that time, 'the deceased' was in sound and disposing PC124/06 & 135/06 Page 13/38 mind and that, the Will was executed by 'the deceased' out of her free will, without any force, fraud, coercion and undue influence from any quarter whatsoever. Sudhir as such, proved 'the earlier Will'.
PetitionerPW2 in his evidence by way of affidavit Ex.P2 deposed for 'the earlier Will' Ex. PW1/1 (PC 124/06) having been executed by 'the deceased'testatrix in sound and disposing mind and that, said Will was presented for registration before the office of Sub registrar on 3.2.1994. In his such deposition, Sudhir also deposed that the Will dated 13.12.1994 propounded by Subhashini in probate case No.3/2004 was forged and fabricated document and the same had not been signed by 'the deceased' and the signatures on the said alleged Will purported to be of the testator, were forged and fabricated, as 'the deceased' had not given any reason for revoking the Will dated 13/14.5.93 and in fact, 'the deceased' had signed a note dated 6.2.98 wherein, she has categorically stated that her last Will and testament th was dated 13/14 May, 1993 and that, her daughters have forced her to sign some documents and blank papers and that, the said notice was given to Mr. Vijay Ratna, son of the sister of 'the deceased', who handed over the same to the petitioner and the said note was Ex.PW2/3 PC124/06 & 135/06 Page 14/38 and was signed by 'the deceased' at pt. XX and by Mr. Vijay Ratra at pt. YY. PW3, who was official from the office of SubregistrarIII, Asaf Ali road, Delhi, deposed for registration of Will of 'the deceased' Ex.PW1/1 vide document No. 538 in additional Book No.3, Vol. No. 773 at pages 7 to 9.
7. Subhashini in support of her case, examined an attesting witness to 'the later Will' namely Retd. Lt. Col. P.C. Chadha as PW1 (PC No.135/06), who was examined prior to consolidation of proceedings, besides examining herself as RW1; and RW2 Sh. Sham Chand and closed RE. Attesting witness PW1 (PC135/06) , in his testimony has deposed for the execution of 'the later Will'. Subhashini deposed for the Will dated 13/14 May, 1995 having been revoked by a later registered Will dated December 13, 1994 Ex.RW1/2 and identified the signatures of 'the deceased' at pt.A, as she had seen her writing and signing, during the lifetime of 'the deceased'. She also deposed that till about March 1999, Sudhir was resident of Bombay and not in a position to assist 'the deceased' during her life time with the management of her estate and she only, was assisting 'the deceased' since April, 1988, when her father died. She also deposed that the PC124/06 & 135/06 Page 15/38 Will dated 13.12.1994 executed by the Testatrix in the presence of Lt. Col. P.C. Chadha and Maj. Narang, who also signed the Will as attesting witnesses and then, presented for registration before the Sub registrar and that, the Testatrix was in sound disposing mind at the time of executing the Will and executed the same voluntarily, without any pressure or coercion. Subhashini RW1 as such deposed for the due execution of 'the later Will' by 'the deceased' being in sound disposing mind. RW2 deposed that on 13.12.94, he was posted as Subregistrar, Asaf Ali Road and was also looking after the office of Subregistrar, INA and that, during his tenure, the Wills used to be registered in the office of Subregistrar and concerned clerk used to make an entry in the peshi register regarding the Wills, which were registered. He also deposed that the Will dated 13.12.94 Ex.PW1/1 registered as document No. 6204 dated 13.12.94 bears his signatures at pts.X1 to X4 and the testator and witnesses of Will signed on the Will in his presence and that, the same was registered. RW2 as such proved the registration of 'the earlier Will'.
8. During the course of trial, on a compromise arrived at amongst Sudhir, Sushma and Shashi, Sushma and Shashi withdrew PC124/06 & 135/06 Page 16/38 their objections/claims against Sudhir. As such, the only contesting parties in the proceedings are Sudhir and Subhashini.
9. I have heard the Ld. counsel for the Sudhir and Subhashini and also perused the written submissions and the record carefully.
10. My issuewise findings are as under :
ISSUE NOS.1 & 2 :
Whether the Will dated 13/14.05.1993, propounded by Sh. Sudhir Malik is the duly executed last and final Will and testament of late Smt. Veena Malik in sound physical and mental state of mind? Onus placed on Sh. Sudhir Malik.
AND Whether the Will dated 13.12.1994, propounded by Smt. Subhashini Sood and Sushma Gupta is the duly executed last and final Will of Smt. Veena Malik in sound physical and mental state of mind? Onus placed on Smt. Subhashini Sood and Smt. Sushma Gupta.
Both the issue Nos. 1 & 2 are interrelated inasmuch as, the petitioners in both the petitions have propounded their respective Wills and asserted those to be the last and final Wills of 'the deceased' and therefore, both the issues are taken up together.
Though, the issue Nos.1 & 2 are interrelated, 'the later PC124/06 & 135/06 Page 17/38 Will', which is dated 13.12.1994, being the duly executed and the genuine Will of 'the deceased' or not, is the moot question for consideration in the given facts and circumstances of the case, in as much as it is the own case of the objectors to 'the earlier Will' that 'the earlier Will', was revoked by 'the later Will'. 'The later Will' in its opening paragraph itself records as under :
"In full senses, perfect mental and physical condition and without any pressure of anybody whatsoever, I, the undersigned, Mrs. VINA MALIK, age nearly 73 years, wife of Late Wing Commander Y.L. Malik resident of C251, Defence Colony, New Delhi24 do hereby revoke all former Wills and condocils made by me including my Registered Will No. 538, Book No. III, Volume No.773 at pages 7 to 9 dated 13/14 May 1993 registered on 3.2.1994 in the office of the Sub Registrar, New Delhi and make this my LAST and only WILL and TESTAMENT of my own accord, on this Thirteenth day of December 1994."
The abovesaid narration in 'the later Will', which is propounded by Subhashini and Sushma, leaves little scope for challenge to the due execution of 'the earlier Will'. 'The later Will' propounded by Subhashini and Sushma is disputed by Sudhir for its due execution and genuineness, with the following allegations made in PC124/06 & 135/06 Page 18/38 paraA of the preliminary objections/submissions in PC No. 124/06:
"....................................................................................... The facts are that the alleged Will dated 13th December, 1994 has been got executed by fraud, misrepresentation, coercion and threat by the Respondent No.2 in connivance with Respondent Nos. 3 and 4. It is submitted that the Respondent No.2 was having physical control over the deceased mother who could not face the Respondent No.2 in any manner whatsoever. Taking benefit of the physical control the Respondent No.2 forced the deceased mother to put her signature and thumb impression on the alleged Will in favour of the Respondent Nos.2,3 and 4.
It is submitted that the deceased mother has certified this fact of misrepresentation and threat by the Respondent Nos. 2,3 and 4 by getting a note written during her life time from her sister's son Shri Vijay Ratra on 6th February, 1998. She called her nephew and narrated everything to him. She was not in a position to go out without the consent of Respondent No.2 and was completely confined in the house. In the circumstances, by taking the opportunity, she called Shri Vijay Ratra and explained everything to him and asked him to write the facts about the alleged Will dated 13th December, 1994 which was got procured by Respondent No.2 in connivance with Respondent Nos. 3 and 4. The said note has been signed by the deceased mother on 6th February, 1998 duly witnessed by the writer Shri Vijay Ratra. This note of Smt. Vina Malik is sufficient proof that she only wished to execute the Will dated 13th/14th May, 1993 of her own free will and the Will dated 13th December, 1994 is a procured PC124/06 & 135/06 Page 19/38 document obtained by fraud, misrepresentation, coercion and threat. In the circumstances, the Will dated 13th December, 1994 is not a Will in the eyes of law and Will of the deceased dated 13th/14th May, 1003 is the final document."
In the objections/reply filed by Sudhir in PC No. 135/06, in para4 on merits, 'the later Will' is then disputed about its due execution and genuineness, with the following averments :
"....................................................................................... It is submitted that the last valid and legal will is dated 13th/14th May 1993. The alleged will dated 13th December 1994 was not executed by the mother of the parties out of her free will. In fact the petitioners coerced her by playing a fraud upon the deceased. The petitioners misrepresented to the deceased and got the said alleged will dated 13.12.1994 executed from her by obtaining her signatures on blank papers. Having obtained the signatures of the deceased in the manner aforesaid the deceased subsequently wrote a letter dated 6th February 1998 stating in no uncertain terms that she had only executed a will dated 13 th/14th May 1993 and that petitioners had obtained signatures from her on blank papers with an intent to falsely claim a share in the immovable property in question. The said letter was handed over by the deceased to her nephew Mr. Vijay along with a copy of the will dated 13th/14th may 1993. It would not be out of place to mention here that petitioner no.1 had physical and psychological control over the deceased mother and was in a position PC124/06 & 135/06 Page 20/38 to dictate terms to her. Taking advantage of the situation, the petitioner no.1 forced the deceased mother to put in her signature and thumb impression on a blank paper purported to the alleged Will dated 13th December 1994. In the circumstances the said will is neither binding on the other legal heirs of the deceased nor is the same admissible in law. ................................................................................. ......"
Before I advert to consider, as to whether 'the later Will' has come to be proved to have been duly executed by 'the deceased' and attested by the witnesses in consonance with Sec.63 of the Indian Succession Act hereinafter referred to as 'the said Act', I proceed to consider as to whether 'the later Will' was executed by 'the deceased' of her own free will and in sound mental health. On this aspect, suffice to say, it is not the case of either party that on account of any serious ailment or otherwise, mental faculty of 'the deceased'testatrix was impaired and she was incapable to understand the nature and extent of her disposition. Subhashini, who examined herself as RW1, in her deposition by way of affidavit Ex.R1, has categorically deposed that the testatrix was in sound disposing mind at the time of execution of the Will. Such deposition of Subhashini has gone unchallenged and unrebutted as well. It is thus, well established that 'the deceased' PC124/06 & 135/06 Page 21/38 testatrix was of sound disposing mind at the time of execution of 'the later Will'. As for the aspect of said Will having been executed by 'the deceased' of his own free will, it is not in dispute that for long, till the execution of 'the later Will', 'the deceased' was residing with Subhashini at Delhi, while Sudhir was resident of Mumbai. Subhashini RW1 in her deposition has categorically deposed that 'the later Will' was executed by 'the deceased' voluntarily, without any pressure or coercion. Though crossexamined, her such deposition, I observe, has gone unshaken. To dispel such deposition, Sudhir, but for examining himself as PW2, has not examined any other witness, to establish that 'the later Will' was obtained by fraud, misrepresentation, coercion and/or threat etc. by Shubhashini in collusion with Sushma and Shashi, as pleaded to by Sudhir in his petition or the objections/reply filed to the petition filed by Subhashini & Anr. The pleas raised by Sudhir in the rejoinder filed by him in his own petition (PC No. 124/06) and the reply/objections filed by him in the petition filed by Subhashini and Sushma, which are quoted earlier, a bare perusal thereof would show, are inconsistent and contradictory. While in one breath, he alleges for 'the later Will' having been got executed by Subhashini in connivance with Sushma and Shashi forcibly, by PC124/06 & 135/06 Page 22/38 playing fraud, misrepresentation, coercion and threat etc., in another breath he then alleges for Subhashini and Shashi having got 'the later Will' executed by obtaining her signatures on blank papers. Quite interestingly then, while in any of the pleadings he does not allege for the signatures of testatrix appearing on 'the later Will' to be not that of 'the deceased', he springs up to depose in his deposition by way of affidavit Ex.P2 that 'the later Will' was forged and fabricated. Whether Subhashini got the Will executed by any fraud, misrepresentation, coercion and/or threat or that, having obtained the signatures of the deceased on blank papers, 'the later Will' got prepared and therefore, it was forged and fabricated, it was for Sudhir to establish so with cogent evidence. To prove so, as said earlier, Sudhir but for examining himself, has not examined any other witness. Sudhir has not disputed the assertion of Subhashini that from the year 1988 till 1999, was managing the estate of 'the deceased'. There is also no specific denial by Sudhir that during such period, he was living with his family at Mumbai, while his sisters Subhashini, Sushma and Shashi were in Delhi and would naturally, have been looking after their mother. It is also not the case of either party that the sisters of Sudhir were enmical to their mother nor any instance of any act, which PC124/06 & 135/06 Page 23/38 could be unexpected of a child towards the mother, has come to be even mentioned either in the pleadings or in the evidence led by Sudhir. As said earlier, Sudhir but for examining himself as PW2, has not examined any other witness and his bald deposition, when, as said earlier, even no instance of any maltreatment muchless any cruelty etc. is alleged to have been meted out to the deceased by Subhashini and the other sisters, I find no reason to believe. It would be unnatural to believe so. The contradictory pleas and the changing stands, that Sudhir has taken to challenge the genuineness of 'the later Will', by itself suggest that his bald versions are not worth believing. His own conduct in filing the petition seeking probate of 'the earlier Will', having full knowledge of 'the later Will', which he admits during cross for having been verbally told by 'the deceased', but making no whisper about it, is another circumstance to discredit his bald deposition for 'the later Will', having been obtained by any threat, misrepresentation, coercion etc. Surprisingly then, he came out with purported letter dated 6.2.1998 Ex.PW2/3 allegedly signed by 'the deceased' but in the writing of Sh. Vijay Ratranephew of 'the deceased'. As per this letter, 'the deceased' had not made any other Will but for the Will dated 13/14.5.1993, which is 'the earlier Will' and Subhashini and others had PC124/06 & 135/06 Page 24/38 forced the deceased to sign some documents and blank papers etc. This letter surfaced on the record at a much later stage of the proceedings. Be that as it may, having produced such a letter on record to prove that 'the later Will' was either forged, fabricated etc., it was for Sudhir to prove this letter in accordance with law but he failed to do. Needless to say, mere exhibition of the letter is not the proof of the contents thereof. Sudhir did not choose to even summon Sh.Vijay Ratra, for the reasons unexplained. Failure to summon and examine said Vijay Ratra, in the event the letter dated 6.2.1998 Ex.PW2/3 was so asked to be written by the deceased and signed by her on 6.2.1998, invites an adverse inference. It is not the case of Sudhir that said Vijay Ratra was either incapacitated from being examined before Court for any reason whatsoever or had gone beyond his reach or the Court. The compromise arrived at amongst Sudhir and his two sisters namely Sushma and Shashi during the course of trial vide application Ex.P1 & P3, in my considered view, has an inbuilt clement of acknowledgment of the genuineness of 'the later Will', as per which, 'the deceased' bequeathed her estate in favour of her children equally. As per the compromise recorded on 8.1.07 and in pursuance whereof, Sushma and Shashi withdrew their objections, said sisters of Sudhir PC124/06 & 135/06 Page 25/38 relinquished their right, title and interest in 'the said property', in favour of Sudhir by virtue of regd. relinquishment deeds. Had there been no vesting of any right, title and interest, which flows from 'the later Will', there was no reason for Sudhir to receive so, in pursuance of respective regd. Relinquishment deeds executed in his favour. Copies of the applications filed before the Hon'ble High Court shows that under the compromise arrived, he paid Rs.25 Lacs each to Sushma and Shashi. This circumstance also lends further to the factum of genuineness of 'the later Will'. In view of the aforegoing, I have no hesitation in coming to the conclusion that Sudhir has miserably failed to prove that 'the later Will' was obtained by fraud, threat or coercion and/or it was a forged and fabricated document.
Ld. counsel for Sudhir strenuously contended that Subhashini had miserably failed to prove the due execution and attestation of 'the later Will', as contemplated U/s 63 of the Indian Succession Act. In the submission of the Ld. counsel for Sudhir, the attesting witness PW1 (PC135/06) failed to depose that he had seen the testatrix sign nor had he identified the signatures of the testatrix or the other attesting witnesses and his deposition as such, did not prove PC124/06 & 135/06 Page 26/38 the due execution and attestation of 'the later Will'. Also in his submissions, there was no positive statement made by the attesting witness PW1 to the effect that the testatrix signed the Will in the presence of the attesting witnesses and that, the testimony of the registering authority, who appeared as RW2, is not that of an attesting witness and therefore, of no avail and even otherwise, the testimony of RW2 was contradictory and not reliable, inasmuch as, while the copy of 'the later Will' could not be found in the office of the Subregistrar, RW2 at one stage deposed for having verified the identity of the testatrix by seeing the passport, ration card or any other document which could show the identity of the said person and that, he had noted the particulars of the said document and after seeing the Will Ex.PW1/1, he deposed that he had noted the ration card No. on the back page of the Will at pt. Y but then, admitted it to be correct that the ration card No. at pt. Y was of Lt. Col. C.P. Chadha and not of the testatrix and that, the documents of identity of testatrix were not written on the Will Ex.PW1/1. Thus, according to the Ld. Counsel for Sudhir, the testimony of RW2 was not reliable and of no avail and liable to be rejected. In support of the submissions, Ld. counsel for Sudhir placed reliance upon H.Venkatachala Iyenger Vs. B.N. PC124/06 & 135/06 Page 27/38 Thimmajamma AIR 1959 SC 443; Girja Datt Singh Vs. Gangotri Devi Singh AIR 1959 SC 246; Babu Singh & Ors. Vs. Ram Sahai @ Ram Singh (2008) 7 SCR 250; Rur Singh Vs. Bachan Kaur 2009 (2) JT 542 SC; Apoline D'Souza Vs. John D'Souza (2007) 6 SCR 1103; Lalitaben Jayantilal Popat Vs. Pragnaben Jamndas Kataria 2009 (1) SCALE 238; Kashibai Vs. Parwatibai JT 1995 (7) SC 48; Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao & Ors. (2006) 13 SCC 433; Yumnum Ongbi Tampha Ibemma Devi Vs. Yumnam Joykumar Singh & Ors 2009 (3) SCALE 571; and Benga Behara Vs. Braja Kishore Nanda (2007) 9 SCC 728.
Ld. counsel for Subhashini on his part however, strenuously contended that for coming to the conclusion as to whether the Will was duly executed and attested, the Court was required to see the entire evidence and material on record and arrive at its own satisfaction inasmuch as, it was a question of fact to be determined on the appreciation of evidence. In support thereof, reliance is placed upon AIR 1955 SC 363 Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta & Anr.; AIR 1959 SC 443 H.Venkatachala Iyenger Vs. B.N. Thimmajamma; and Apoline D'Souza Vs. John D'Souza (2007) 6 SCR 1103, equally relied upon by Ld. counsel for Sudhir. PC124/06 & 135/06 Page 28/38
Whether the testimony of attesting witness PW1 (PC135/06) fulfils the requirement of Sec.63 of the Indian Succession Act, the brief examinationinchief of PW1 is as under :
"I recognize my signatures on page 3 of the will executed on 13.12.1994. This document is Ex.PW1/1. It is true that as stated in this will we had signed this in the presence of the testator and at the same time in the presence of each other. I do not recognize the signature of other witness Maj. K.L. Narang. I recognize the photographs of the testatrix Mrs. Vina Malik on page 1 of the Will. I recognize my signature on the back of page 1 of the will Ex.PW1/1 which was done before the Sub Registrar office. I do not remember anything else about this will executed in 1994 which is an old matter."
In his short crossexamination on behalf of Sudhir, he deposed as under :
"I am not a summoned witness. I was picked up from home by Smt. Subhashini Sood and brought to court today. On the last date of hearing i.e. on 1.5.2003 also I was picked up by Smt. Subhashini Sood and Smt. Sushma Gupta and brought to court. It is correct that as stated in my statement recorded on 1.5.2003 that I do not remember anything else about the will executed in 1994, except what I stated on 1.5.2003. I do not PC124/06 & 135/06 Page 29/38 know the signatures of Sh. K.L. Narang. However, as stated in my statement earlier, we both signed at the same time in the presence of each other. It is wrong to suggest that Sh. K.L. Narang did not signed in my presence nor did I signed in his presence. I do not remember since how long I know Smt. Subhashini Sood. However, as far as I recollect, I must have started seeing Smt. Subhashini Sood and Smt. Sushma Gupta and other members of their family around the year 1980. My relations with Smt. Subhashini Sood and Smt. Sushma Gupta are very normal. It is wrong to suggest that the statement given by me at the behest of Smt. Subhashini Sood and/or Smt. Sushma Sood or anybody else. It is wrong to suggest that I am deposing falsely."
This attesting witness though did not remember anything other than what he deposed, what he deposed requires close scrutiny. Relevant to context is his following deposition :
"I recognize my signatures on page 3 of the will executed on 13.12.1994. This document is Ex.PW1/1. It is true that as stated in this will we had signed this in the presence of the testator and at the same time in the presence of each other. ................................................"
The abovesaid deposition, which has gone unchallenged and unrebutted, does prove that 'the later Will', which is Ex.PW1/1 PC124/06 & 135/06 Page 30/38 (PC135/06), was executed on 13.12.94 and the attesting witnesses to it, signed it, as stated in the Will. This Will records for its execution and attestation, as under :
"....................................................................................... .........................................................................................
8. I hereby revoke all my former Wills and condicils made by me and declare that this is my last Will. I have executed and signed this Will in the presence of witnesses LT COL P.C. CHADHA resident of C249 Defence Colony, New Delhi24 who have also signed this Will in my presence of this thirteenth day of December 1994.
SIGNATURE OF TESTATOR Sd/ Mrs. VINA MALIK C251, Defence Colony th Dated 13 December 1994 New Delhi110024 Signed by the above named TESTATOR in our presence, present at the same time and each of us have in the presence of the TESTATOR signed our name here under as attesting witnesses on this thirteenth day of December 1994.
Sd/ Sd/
Lt Col P.C. CHADHA Maj K.L. NARANG"
Abovesaid recording, which PW1 has deposed for having PC124/06 & 135/06 Page 31/38 been signed as stated above, clearly records for the testator having signed in the presence of the attesting witnesses and all of them, having signed in the presence of each other. PW1 having stated in his deposition that he signed the Will, as stated in the Will, in my considered view, deposed for having stated that the testator signed in the presence of the attesting witnesses and all of them, signed the Will at the same time and in the presence of each other. In view of foregoing, merely because PW1 did not recognize the signature of other witness Maj. K.L. Narang on the Will, while he equally says that he did not remember anything else about the Will executed in 1994 which was an old matter, it cannot be assumed that the testimony of PW1 was of no avail. Suffice to say, in the examinationinchief as also during cross, PW1 has deposed for the Will having been signed by him in the presence of the testator and at the same time in the presence of each other. Such deposition of PW1 in the backdrop of the facts that the signatures appearing on 'the later Will' being that of 'the deceased'testatrix and she being of sound disposing mind at the time of the execution of the Will being unchallenged, coupled with the fact that during cross, PW1 has admitted that 'the deceased' verbally told him about the execution of another Will, which has reference to 'the PC124/06 & 135/06 Page 32/38 later Will' and the fact that by virtue of letter dated 6.2.1998, 'the later Will' is sought to be nullified, support the deposition of the attesting witness PW1, for the due execution and the attestation thereof.
Needless to say, each case is to be seen and the evidence appreciated, in its own peculiar facts and circumstances. In Naresh Charan Das Gupta's case (supra), which is relied upon by both the parties, the Hon'ble Supreme Court has held as under :
"....................................................................................... .........................................................................................
12. It was also argued for the appellant that there was no proof that the will was duly attested as required by S.63, Indian Succession Act, and that it should therefore be held to be void. P.Ws. 1 and 2 are the two attestors, and they stated in examinationin chief that the testator signed the will in their presence, and that they attested his signature. They did not add that they signed the will in the presence of the testator. Now, the contention is that in the absence of such evidence it must be held that there was no due attestation. Both the Courts below have held against the appellant on this contention.
The learned Judges of the High Court were of the opinion that as the execution and attestation took place at one sitting at the residence of P.Q.1, where the testator and the witnesses has assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were not crossexamined on the question of attestation, it PC124/06 & 135/06 Page 33/38 could properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did not state in examination inchief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted. Indeed, it is stated in the judgment of the Additional District Judge that "the fact of the due execution and attestation of the will was not challenged on behalf of the caveator at the time of hearing of the suit." This contention of the appellant must also be rejected. .......................................................................... ......................................................................................."
The abovesaid principle of law was reiterated by the Hon'ble Supreme Court in H.Venkatachala's case (Supra) in the following words :
"....................................................................................... .........................................................................................
22. It is obvious that for deciding material questions of fact which arise in the applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid PC124/06 & 135/06 Page 34/38 execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes Vs. Hinkson, 50 Cal W N 895 : (AIR 1946 PC
156) " where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." It would sound platitudinous to say, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilent cautious and circumspect.....................................................................
......................................................................................." In view of the foregoing, I am of the considered view that the execution and due attestation of 'the later Will' Ex.PW1/1 (PC No. 135/06) is well established. Any contention raised to the contrary is therefore, rejected.
It is not in dispute that the Will was duly registered. Though some contradictions appear in the testimony of RW2 as PC124/06 & 135/06 Page 35/38 regards the documents seen and having recorded on the Will for ascertaining the identity of the testatrix, in view of the fact that the signatures on the Will being that of the testatrix are not in dispute nor is the photograph appearing thereon, the contradictions pointed out are very minor and only reflect that the witness was not a tutored witness. Be that as it may, the registration of the Will being not in dispute, any contradiction in the testimony of RW2 is irrelevant.
In view of the foregoing, I have no hesitation in concluding that the Subhashini has successfully discharged the burden to prove that the Will dated 13.12.94 Ex.PW1/1 (PC135/06) was the duly executed last and final Will of Smt. Vina Malik, in sound physical and mental state of mind. Issue framed to that effect is therefore, answered in favour of Subhashini and against Sudhir. Consequently, the issue, the onus whereof, was upon Sudhir, is answered in the negative and it is held that the Will dated 13/14.5.1993 was not the last and final Will and testament of Late Smt. Vina Malik. Both the issues are answered accordingly.
PC124/06 & 135/06 Page 36/38
ISSUE NO.3 :
Whether the Will dated 13/14.05.1993 stands revoked by subsequent Will dated 13.12.1994, allegedly executed by late Smt. Veena Malik? Onus placed on Smt. Subhasini Sood and Smt. Sushma Gupta.
In view of my findings on issue Nos. 1 & 2, it is held that the Will dated 13/14.5.1993 stood revoked by subsequent Will dated 13.12.1994. Issue in hand is answered accordingly.
11. In the petition filed by Subhashini, Subhashini alongwith Sushma has prayed for being granted the Letters of Administration for the execution of the Will Ex.PW1/1 (PC No. 135/06) jointly and/or severally. As per the Will Ex.PW1/1, the entire estate of the deceased was to be shared equally amongst her children i.e. Sudhir, Subhashini, Sushma and Shashi. On a compromise arrived at between Sudhir, Sushma and Shashi during the course of the trial, Sushma and Shashi have relinquished their right, title and interest in 'the said th property' in favour of Sudhir and thereby, ¾ share of the said property vests in Sudhir. In the given situation, I therefore, consider that Sudhir should be granted the Letters of Administration for the PC124/06 & 135/06 Page 37/38 execution of the Will Ex.PW1/1 (PC135/06).
RELIEF :
Letters of Administration in respect of the Will dated 13.12.1994 Ex.PW1/1 (PC No. 135/06), be issued in favour of Sh.
Sudhir Malik, on furnishing of administration bondcumsurety bond and payment of requisite court fees.
Announced in the open Court (A.K. Chawla)
th
on 20 day of August, 2011 District Judge(N)/Delhi
PC124/06 & 135/06 Page 38/38