Delhi District Court
Sh. Shashi Kumar Saxena vs State on 28 March, 2009
1
IN THE COURT OF SMT. BIMLA MAKIN : ADJ : DELHI
Parties in PC. No. 92/07
Sh. Shashi Kumar Saxena,
S/o Late Sh. Krishna Murari Swarup,
R/o CP-12, Maurya Enclave,
Pitam Pura, Delhi.
.................... Petitioner.
VERSUS
State. ................... Respondent.
Date of Inst. 30.5.2007
Parties in PC. No. 2/08
Sh. Rajeev Kumar Saxena,
S/o Late Sh. Amulya Kumar,
C/o Deptt. of Obsterics and Gynaecologist,
Command Hospital, Airport Road,
Bangalore, Karnataka.
Dr. Sanjeev Kumar Saxena,
S/o Late Sh. Amulya Kumar,
B-10, Staff Quarters,
Subharti Dental College,
Subhartipuram,
Delhi-Haridwar Bypass Rd.,
Meerut, U.P.
Smt. Anjali Saxena,
W/o Dr. Alok Saxena,
D/o Late Sh. Amulya Kumar,
B-151, First Floor, Sector-31,
Noida, U.P.
Smt. Archana Maheshwari,
W/o Sh. Neeraj Kumar Maheshwari,
D/o Late Sh. Amulya Kumar,
R/o Kusum Kunj,
2
New Madho Nagar,
Saharanpur, U.P.
Smt. Nirmala Saxena,
W/o late Sh. Vimal Kumar Saxena,
R/o B-1/280, First Floor,
Janak Puri, New Delhi.
Sh. Samir Saxena,
S/o Late Sh. Vimal Kumar Saxena,
R/o B-1/280, First Floor,
Janak Puri, New Delhi.
Smt. Geeta Dutta,
W/o Sh. Rajeev Dutta,
D/o Late Sh. Vimal Kumar Saxena,
R/o 9/10, Cassia Road,
Shipra Sun City, Indirapuram,
Ghaziabad, U.P.
Ms. Shikha Saxena,
D/o Late Sh. Vimal Kumar Saxena,
R/o B-1/280, First Floor,
Janak Puri, New Delhi.
..................... Petitioners.
VERSUS
State.
...................... Respondent.
Date of Inst. 3.1.2008
JUDGMENT
By this judgment I shall dispose of two petitions bearing no. 92/07 titled 'Shashi Kumar Saxena Vs State' and 02/08 titled 'Rajiv Kumar Saxena Vs State'. The petition bearing no. 92/07 titled 'Shashi Kumar Saxena Vs State' was filed on 30.5.2007 and the 3 petition bearing no. 02/08 titled 'Rajiv Kumar Saxena Vs State' was filed on 3.1.2008. As the petition bearing no. 92/07 titled 'Shashi Kumar Saxena Vs State' was filed earlier in time it shall be treated as the main petition.
Brief facts leading to both the petitions are that late Sh. Krishna Murari Swarup was the owner of the immovable property bearing no. B-1/280, Janak Puri, New Delhi. Apart from this he owned certain movable properties also. He expired on 20.10.1993 and before his death he executed a will on 10.8.1990 and a codicil on 27.9.1992 in the presence of two witnesses namely Sh. S.C. Singhal and Sh. Desh Bandhu. Sh. Amulya Kumar, the eldest son was named as the executor of the will. But during his lifetime Sh. Amulya Kumar took no steps to execute the will. After his death the other brother Sh. Vimal Kumar Saxena also took no steps to execute the will. Hence the petition was filed by the youngest son Sh. Shashi Kumar Saxena on 30.5.2007. On 3.1.2008 the legal heirs of Sh. Amulya Kumar and Sh. Vimal Kumar Saxena filed another petition U/s 232 and 278 of the Indian Succession Act for grant of letter of administration of the same will dated 10.8.1990 and a codicil dated 27.9.1992 executed by late Sh. Krishna Murari Swarup. Vide order dated 25.2.2008 both the petitions were consolidated. 4
Notice of the petition was issued to the respondents. In the petition bearing no. 92/07 titled 'Shashi Kumar Saxena Vs State' citation for general public was got published in daily newspaper 'Punjab Kesri' dated 5.7.2007 and in the petition bearing no.02/08 titled 'Rajiv Kumar Saxena Vs State' citation for general public was got published in daily newspaper 'Punjab Kesri' dated 20.2.2008 and the copies of both the citations were also displayed on the court notice board. In the petition bearing no. 92/07 titled 'Shashi Kumar Saxena Vs State', reply in the form of no objection was filed on behalf of respondent no. 6. Sh. Suresh Kumar, respondent no. 7. Smt. Anjali Saxena, respondent no. 10. Sh. Sanjeev Kumar Saxena, respondent no. 8. Smt. Archana Maheshwari and respondent no. 9. Sh. Rajiv Kumar Saxena. Respondent no. 1. Smt. Saroj Kumari was proceeded ex-parte vide order dated 4.10.2007.
The objections were filed on behalf of Smt. Mala Saxena and Smt. Shail Kumari Saxena only wherein it was alleged that the will was not executed by the testator in his sound disposing mind and without any pressure. The objection was also raised that several meetings took place amongst the brothers and sisters but no consensus could be reached as the last will and codicil were found doubtful. At the relevant time Section 23 of the Hindu Succession Act 5 was an obstacle for seeking the partition of the property and after removal of this obstacle the sisters demanded partition of the property. The petitioner in collusion with other respondents filed this petition. On merits also it was submitted that the will appears to have been obtained by force. The sisters were never shown the original will as it was procured under suspicious circumstances.
In reply, all the allegations made by the respondents were denied. On the pleadings of the parties following issues were framed in both the cases. The issues in the petition bearing no. 92/07 titled 'Shashi Kumar Saxena Vs State' were framed on 6.11.2007 and the issues in the petition bearing no. 02/08 titled 'Rajiv Kumar Saxena Vs State' were framed on 25.2.2008 :
ISSUES
1. Whether the will dated 10.8.1990 and the codicil of the said will dated 27.9.1992 as propounded by the petitioner was validly executed by the deceased late Sh. Krishna Murari Swarup in his sound disposing mind and same is his last will and testament? OPP
2. Relief.
The petitioners in both the petitions were seeking letter of administration of the same will and codicil executed by late Sh. Krishna Murari Swarup. Hence three witnesses were examined 6 on behalf of the petitioners in both the cases. Several opportunities were granted to the respondents to lead evidence but they failed to lead any evidence. Hence their evidence was closed by the court order dated 20.3.2009.
I have heard the arguments advanced on behalf of both the parties. I have also carefully gone through the evidence lead on record, the documents proved and the judgments relied upon by the parties. My findings on the issues are as follows : ISSUE NO. 1
The case of the petitioners in both the cases is that late Sh. Krishna Murari Swarup executed a will during his lifetime in his sound disposing mind on 10.8.1990. It was a handwritten will and codicil and both the documents were attested by the same witnesses namely Sh. S.C. Singhal and Sh. Desh Bandhu. PW.1. Sh.
Shashi Kumar Saxena filed his affidavit Ex.PW1/A wherein he deposed that the will and codicil were witnessed by two witnesses Sh.
S.C. Singhal, resident of B-1/279, Janak Puri, New Delhi and Sh.
Desh Bandhu, resident of KM-185, Kavi Nagar, Ghaziabad. The testator made his eldest son Sh. Amulya Kumar as the executor of the will. He did not open the will till his death in 1995. After the death of Sh. Amulya Kumar, the second son of the testator Sh. Vimal Kumar 7 Saxena stepped into the shoes of Sh. Amulya Kumar and became the defecto caretaker of the entire assets of late Sh. Krishna Murari Swarup. He also chose to keep the will as a sacred secret and the will was disclosed to the petitioner only on 2.4.2006. Sh. Vimal Kumar Saxena tried for a family settlement but it failed. Sh. Vimal Kumar Saxena expired on 18.8.2007. His legal heirs were brought on record and they subsequently filed another petition seeking letter of administration of the same will. In cross examination he deposed that in June 1997 he came to know about the existence of the will. His parents stayed with Sh. Amulya Kumar during their lifetime. Further he deposed that his father never gave any money to him for purchasing a DDA flat. Father paid the money to Sh. Suresh Kumar for purchasing a flat. He was living separately from the father since August 1978 hence he was not aware what was given by the father and to whom. He never talked to his sisters about the will and never offered any compromise to them about their share in the property.
The will was not executed in his presence. Only after seeing the will, he came to know that Sh. S.C. Singhal and Sh. Desh Bandhu were the attesting witnesses of the will. The statement of this witness is very formal in nature and it does not prove the execution of the will.
He has neither identified the handwriting and signature of his father 8 nor of the attesting witnesses.
Section 68 of the Indian Evidence Act, 1872 deals with proof of execution of document required by law to be attested. This section lays down that if the deed sought to be proved is a document required by law to be attested and if there be an attesting witness alive and subject to process of the Court and capable of giving evidence, he must be called to prove execution.
Execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act.
Section 63 of the Indian Succession Act gives meaning of attestation as under:
Section 63 : Execution of unprivileged wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, (or an airman so employed or engaged), or a mariner at sea, shall execute his will according to the following rules:
a. The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his 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.9
c. The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person ; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
It is clear from the definition that the attesting witness must state that each of the two witnesses had seen the executor sign or affix his mark to the instrument or had seen some other person sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses signed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word 'execution' in Section 63 includes attestation as required by law.
In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above.
The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator 10 and execution of the will in the manner contemplated by law. In such circumstances, the onus shifts to the contestant opposing the will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same.
PW.2. Sh. Samir Saxena filed his affidavit Ex.PW2/A and he proved the handwriting of his grandfather. The will and the codicil are the handwritten documents in the handwriting of the testator and Sh. Samir Saxena filed his affidavit to the effect that he had seen his grandfather writing and signing during his lifetime and he can identify his handwriting and signature. Further he deposed that the will as well as the codicil were in the handwriting of the grandfather. The original will is Ex.PW2/2 and the codicil is Ex.PW2/3. He further deposed that the petitioners in the petition bearing no. 02/08 titled 'Rajiv Kumar Saxena Vs State' who are the legal heirs of the testator being his grandchildren and daughter-in-law are desirous of obtaining the seal of this hon'ble court, the grant of letter of administration of the will and codicil. Smt. Vidyawati, wife of Sh. Krishna Murari Swarup died on 5.12.1997. The copies of the death certificates are Ex.PW2/4 and Ex.PW2/5. Sh. Amulya Kumar 11 and Sh. Vimal Kumar, sons of the testator died on 9.9.1995 and 18.8.2007 respectively. The death certificate of Sh. Amulya Kumar is Ex.PW2/6. He further deposed that ever since the death of the testator all the parties recognized and accepted the will and codicil and the daughters of the testator also never raised any objection with respect to the same. They never challenged or asked for any kind of share in the property of the testator. Only now they changed their stance and have filed the frivolous objections. They very well know that the will and codicil were executed by their father. In cross examination he deposed that his grandfather was having very sound mind and good health at the time of executing the will. Till his death he was residing on the ground floor of the property alongwith his wife and family of his eldest son Sh. Amulya Kumar. Further he deposed that the will was not executed in his presence but he could identify the handwriting of his grandfather. There is nothing material in the cross examination of this witness also except that he identified the handwriting of his grandfather and proved that the will and codicil both were in the handwriting of his grandfather. In cross examination not a single question was put to the witness that the will and codicil were not in the handwriting of the testator.
The only attesting witness of the will examined by 12 the petitioners is Sh. Desh Bandhu. He filed his affidavit Ex.PW3/A and after seeing the original will and codicil in the court he deposed that the will and codicil were executed by Sh. Krishna Murari Swarup in his presence. He identified the signature of Sh. Krishna Murari Swarup on the will at point A, his own signature at point C and the signature of Sh. S.C. Singhal at point B. The will is Ex.PW3/1. He further deposed that the will was executed in 1990 and the codicil was executed in 1992. Again he identified the signature of the testator, his own signature and the signature of Sh. S.C. Singhal on the codicil also. The codicil is Ex.PW3/2. The will as well as the codicil were witnessed by the same witnesses. In cross examination he deposed that his affidavit was prepared by the advocate for the petitioner. The will was executed on 9th or 10th of August 1990 in the house of the testator and he reached his house at 3 p.m. In para no. 3 of his affidavit the witness had deposed that he reached the house of Sh. Krishna Murari Swarup at about 3 p.m and he had gone to Sh. Krishna Murari Swarup at about 4:30 p.m and at about 5 p.m the other attesting witness Sh. S.C. Singhal came there. In cross examination he clarified that the reference to 3 p.m and 4:30 p.m in para no. 3 of his affidavit is :
"At 3 p.m I reached on the first floor of the house 13 of the testator to meet Sh. V.K. Saxena, son of the testator who was closer to me than the testator and then at 4:30 p.m I went to ground floor in the house of Sh. Krishna Murari Swarup when he called me."
The next question put to the witness was that what was the sequence of the events after his reaching the ground floor. The answer is :
"When I reached the ground floor Baba Ji, the testator was there. He was already having his handwritten will. After sometime Mr. Singhal reached there. Then me and Mr. Singhal signed the will. Baba Ji also signed it in my presence. We all three were there when the will was signed. First of all the will was signed by the testator then by Mr. Singhal and then by me. I do not know when and how Mr. Singhal was called by the testator. The grand daughter of Sh. Krishna Murari Swarup is married to my real maternal uncle."
I have perused the will and the codicil. Both the documents are handwritten and no questions have been put to PW.2. Sh. Samir Saxena and PW.3. Sh. Desh Bandhu that the will and codicil are not in the handwriting of the testator. No suggestions have been given to this witness that the will was not signed by him or by the testator or by Sh. S.C. Singhal at the same time. No suggestions have been given that the will was obtained forcibly. The respondents have not disputed the fact the testator was in sound disposing mind on the day of the execution of the will and the codicil. He died after more than 14 three years of the execution of the will and more than one year after the execution of the codicil. I have carefully gone through the will and the codicil. There is no change of mind from the original will in the codicil. Hence there is no reason to disbelieve the testimony of PW.3. Sh. Desh Bandhu that the will dated 10.8.1990 and the codicil dated 27.9.1992 were executed by the testator in his sound disposing mind in the presence of two attesting witnesses namely Sh. S.C. Singhal and Sh. Desh Bandhu.
The testator died on 20.10.1993. At the time of his death he was survived by his wife and the sons and daughters. The testator gave life interest in the immovable property to his wife. Para no. 2 of the will reads :
"I leave and bequeath all my movable properties and my residential house i.e B-1/280, Janak Puri, New Delhi to my wife Smt. Vidyawati, subject to the condition that the said Smt. Vidyawati shall have only life interest with no power to encumber or mortgage the house in any manner, whatsoever. On the death of my wife Smt. Vidyawati my Janak Puri house will stand assigned to my below mentioned three sons in the manner stated hereunder:"
Sh. Kalka Pd., ld counsel on behalf of the respondents argued that U/s 14 (1) of the Hindu Succession Act 1956 the life interest bequeathed in favour of Smt. Vidyawati translated into absolute right 15 and admittedly Smt. Vidyawati died intestate hence all the legal heirs became equal share holders to the property under Hindu Succession Act. He relied upon Section 14 of the Hindu Succession Act which reads :
"Property of a female Hindu to be her absolute property :
(1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation - In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this act.
(2)Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
On the other hand Sh. Dilpreet Singh, advocate on behalf of the petitioners argued that the sub-clause (2) of Section 14 was an exception to what was provided U/s 14 (1) of the act. Only those 16 limited interests would translate into an absolute right which devolved upon her as per law of Succession and not those which were received by her under any testamentary disposition. Sh. Kalka Pd., advocate relied upon AIR 1935 Calcutta 154 titled 'Bhupati Charan Basu Vs Chandi Charan Basu Mallik' ; AIR 1979 Madras 124 titled 'Venugopala Pillai Vs Thayyanayaki Ammal and others' ; 1996 (1) Local Law Times 246 (SC). I have carefully gone through the judgments and I am of the considered opinion that none of the judgments relied upon by Sh. Kalka Pd. advocate are relevant to the facts of the present case. There is no ambiguity in the section itself because sub-clause (2) of Section 14 itself provides that it shall not apply to any property acquired by way of gift or under the will or any other testament etc. Sh. Dilpreet Singh, advocate on the other hand relied upon the judgment titled 'Sadhu Singh Vs Gurdwara Sahib Narike & Ors', AIR 2006 Supreme Court 3282. This judgment clarifies the whole law on this issue. It was held that :
"An owner of property has normally the right to deal with that property including the right to devise or bequeath the property. He could thus dispose it of by a testament. Section 30 of the act, not only does not curtail or affect this right, it actually reaffirms that right. Thus a Hindu male could testamentarily dispose of his property. When he does that, a succession under the act stands excluded and the property passes to the 17 testamentary heirs. Hence, when a male Hindu executes a will bequeathing the properties, the legatees take it subject to the terms of the will unless of course, any stipulation therein is found invalid. Therefore, there is nothing in the act which affects the will of a male Hindu providing only a life estate or limited estate for his widow. The act does not stand in the way of his separate properties being dealt with by him as he deems fit. His will hence could not be challenged as being hit by the act.
When male Hindu validly disposes of his property by providing for a limited estate to his heir, his wife, the wife or widow has to take it as the estate falls. This restriction on her right so provided, is really respected by the act. It is provided in S. 14 (2) of the act, that in such a case, the widow is bound by the limitation on her right and she cannot claim any higher right by invoking S. 14 (1) of the act. In other words, conferment of a limited estate which is otherwise valid in law is reinforced by this act by the introduction of S. 14 (2) of the act and excluding the operation of S. 14 (1) of the act, even if that provision is held to be attracted in the case of a succession under the act. Invocation of S. 14 (1) of the act in the case of a testamentary disposition taking effect after the act, would make Ss. 30 and 14 (2) redundant or otiose. It will also make redundant, the expression 'property possessed by a female Hindu' occurring in S. 14 (1) of the act. An interpretation that leads to such a result cannot certainly be accepted. Surely, there is nothing in the act compelling such an interpretation. Sections 14 and 30 both have play. Section 14 (1) applies in a case where the female had received the property prior to the act being entitled to it as a matter of right, even if the right be to a limited estate under the Mitakshara law or the right to maintenance."18
The facts of this case are covered by the above referred judgment of the Hon'ble Supreme Court. In the will itself the life estate was given to the wife Smt. Vidyawati and after her death the specific portions were bequeathed in favour of the sons. The testator was at liberty to dispose of his property in the manner he wished. If only life estate was given by him to his wife, she does not become absolute owner of the property and hence there is no force in the contention of the ld. defence counsel that Smt. Vidyawati became the absolute owner of the property and as she died intestate, all the legal heirs inherited the property equally. She never became the absolute owner of the property. She was not given any right to make any testamentary disposition. Hence her dying intestate does not effect the rights of the parties. Hence I hold that the testator Sh. Krishna Murari Swarup executed a valid will on 10.8.1990, Ex.PW3/1 and a codicil on 27.9.1992, Ex.PW3/2 in his sound disposing mind in the presence of two attesting witnesses.
The two separate petitions were filed by the parties seeking letter of administration of the same will. It is well settled law that the one who comes to the court first is entitled to get the relief. The legal proposition so far as the letter of administration is concerned, is now well settled. If there are several claimants and one 19 is entitled to larger share than the others then the former has to be preferred. In this case Sh. Shashi Kumar Saxena naturally has a larger share in the property as compared to the petitioners in the case bearing no. 02/08 titled 'Rajiv Kumar Saxena Vs State' and also he filed the petition much before the filing of the petition by others. So, the letter of administration has to be granted in his favour for two reasons, having applied earlier in time and having larger share in the property as compared to other legal heirs.
ISSUE NO. 2 RELIEF In view of my findings on Issue No. 1, both the petitions are hereby allowed. Letter of administration of the will dated 10.8.1990, Ex.PW3/1 and codicil dated 27.9.1992, Ex.PW3/2 (will and codicil annexed) is granted in favour of Sh. Shashi Kumar Saxena on filing of valuation report, court fees and on execution of administration and surety bond. The court fees shall be filed by the petitioners in both the cases. File be consigned to record room.
Dictated & Announced (Bimla Makin) Dated : 28.3.2009 ADJ/Delhi