Delhi District Court
Smt. Darshan Kaur vs The State on 20 April, 2013
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT
JUDGE-14 (CENTRAL) DELHI.
PC-71/11
In the Matter of:
Smt. Darshan Kaur,
Widow of S. Avtar Singh,
r/o A-54, Fateh Nagar,
Jail Road, New Delhi. .....Petitioner
VERSUS
1. The State
2. Sh. Khushwant Singh
s/o late S. Avtar Singh,
r/o House no. S-17/928 MCA
Gali Nadalian, Chowk Manna Singh,
Amritsar, Punjab,
Also at:-
Sh. Khushwant Singh,
c/o Sh. Amar Singh Jhander, Advoate
District Courts,
Amritsar, Punjab
3. Sh. Gursharan Singh,
s/o late S. Avtar Singh,
r/o A-54, Fateh Nagar,
Jail Road, New Delhi.
4. Sh. Surinder Pal Singh,
(Since deceased deleted vide order dated 15.10.2008)
PC-71/11 Page No. 1/18
5. Sh. Gagandeep Singh,
s/o late Sh. Surinder Pal Singh,
c/o Ajit Dress Corner,
Inside Lohgarh Gate,
Near State Bank of India,
Amritsar, Punjab.
6. Sh. Jaideep Singh,
S/o Late Sh. Surinder Pal Singh.
(since deceased)
Through his legal heirs
(a) Smt. Gurmeet Kaur-widow
(b) Smt. Simranjeet Kaur-daughter
Both residents of house no. 42,
Ganda Singh Colony,
Taran Taran Road,
Amritsar, Punjab. .....Respondents.
Date of Institution: 22.03.2004
Date of Assignment to this court: 03.09.2012
Date of Arguments: 20.04.2013
Date of Decision: 20.04.2013
JUDGMENT
1. This is a petition under section 276 of the Indian Succession Act filed by petitioner against the respondents for grant of probate/letter of administration in respect of Will dated 19.05.2001 executed by deceased Sh. Avtar Singh s/o late Sh. Thakur Singh. The brief facts of the case as pleaded in present petition are that late Sh. Avtar Singh was the husband of petitioner who unfortunately expired at PC-71/11 Page No. 2/18 Delhi on 31.1.04 and during his lifetime he executed a Will dated 19.5.01 whereby he bequeathed his entire estate including movable and immovable properties in favour of his wife Smt. Darshan Kaur, who is petitioner herein. As stated said Will was also got registered by the deceased with the office of concerned Sub Registrar vide document no. 19189, additional book no. 3, volume no. 5344 on page 24 to 31 dated 19.5.2001. It was stated that at the time of execution of Will the deceased was of sound disposing mind and signed the Will in the presence of two witnesses namely Sh. Raghubir Singh Puri and Sh. R.P.S Sandhu. As stated the witnesses also signed the Will at the same time in presence of the deceased testator and each other. As stated Sh. Avtar Singh was survived by his wife i.e petitioner herein, Sh. Khushwant Singh and Sh. Gursharan Singh both sons of late Sh. Avtar Singh and Sh. Surinder Pal Singh, Sh. Gagandeep Singh and Sh. Jaideep Singh who are legal heirs of Smt. Upjinder Kaur, daughter of late Sh. Avtar Singh who unfortunately expired during the life time of late Sh. Avtar Singh. It was further stated that petitioner being the beneficiary of the Will is entitled to obtain a letter of administration/probate in respect of the Will. Accordingly, it was prayed that letter of administration/probate be granted in favour of the petitioner in view of his last Will and testament dated 19.5.2001.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report. Notice was also issued to PC-71/11 Page No. 3/18 respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " Dainik Jagaran" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper "Dainik Jagaran" on 29.10.04.
4. Valuation report was filed in the matter on 19.9.05
5. Relations no. 5 and 6 namely Gagandeep and Sh. Jaideep Singh were served but did not appear and were accordingly proceeded ex- parte on 22.3.05 but later on objections were filed on behalf of respondents no. 4 to 6. Objections were also filed the respondent no. 2 separately whereas respondent no. 3 filed his no objection to the petition as recorded vide ordersheet dated 22.11.05.
6. In the objections filed by the respondent no. 2 Khushwant Singh preliminary objections were raised. It was stated that the present probate petition is fabricated and fictitious and seems to be scripted by respondent no. 3 Sh. Gur Sharan Singh who is real younger brother of R-2. It was stated that his late father's left body portion was wholly paralyzed due to which his mobility was also affected and respondent no. 3 took undue advantage of his closeness to late father being a resident of Delhi and succeeded fabricating the impugned Will. It was stated that property in the Will belonged to mother of respondent no. 2 namely Sh. Inderjit Kaur who expired on 30.7.69 who loved her three children namely Khushwant Singh, PC-71/11 Page No. 4/18 Gursharan Singh and late Smt. Upjinder Kaur equally.
7. On the pleadings of the parties, the following issues were framed vide order dated 24.2.06:-
1) Whether the Will dated 19.5.01 propounded by the petitioner is validly executed, last Will of the testator Sardar Avtar Singh in a sound disposing mind?OPP
2) Relief.
8. Petitioner in support of her case, examined 5 witnesses including herself as PW-1 Smt. Darshan Kaur, PW-2 Sh. Raghbir Singh Puri, PW-3 Sh. RPS Sandhu, PW-4 Sh. H S Banga and PW-5 Sh. Jagdish Yadav. All petitioner's witnesses were cross-examined by objectors and they supported the case of the petitioner.
9. Objectors in their defence examined O2W1 Head Constable Sh. Medh Ram, O2W2 Sh. Kushwant Singh, O2W3 Sh. Abdul Jabbar, O2W4 Sh. L.A. Mishra, O2W4 Sh. Sukhjinder Singh, O4W1 Sh. Surinder Pal Singh.
10.I have gone through the record and have heard the arguments. My issue wise finding is given below:-
11.Issue No. 1. Whether the Will dated 19.5.01 propounded by the petitioner is validly executed, last Will of the testator Sardar Avtar Singh in a sound disposing mind?OPP:-
(a) Before proceeding to decide issue in question, I would like to discuss the relevant law and judgments on this point. Section 278 of Succession Act deals with petition for grant of letter of PC-71/11 Page No. 5/18 administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required.
PC-71/11 Page No. 6/18Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act. Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of PC-71/11 Page No. 7/18 whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
(b) So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in PC-71/11 Page No. 8/18 accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51. In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of PC-71/11 Page No. 9/18 law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be PC-71/11 Page No. 10/18 applied would be the usual test of the satisfaction of the prudent mind of such matters." '
(c) In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR 578.
The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by her in disposing mind out of her own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
(d) The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of- course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of PC-71/11 Page No. 11/18 testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
(e) The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:PC-71/11 Page No. 12/18
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence PC-71/11 Page No. 13/18 of collateral circumstances cannot control the operation of the clear provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
12. Now, I have to see whether in the present case the above principles have been duly made out or not. The basic defence taken by objector were three folds. Firstly that Will does not bear the signatures of deceased. Secondly, he was not owner of the property in question and thirdly, deceased was not in sound deposing mind and public witnesses have not stated that it was read over to the deceased. Apart from it, certain other minor objections were taken. The Will is to be tested on the surrounding circumstances. The present Will was executed by deceased duly attested by two other witnesses who have nothing to do with property in question and if any interested person /beneficiary is taking part in the exeuction of the Will then a question can arise as to whether Will was read over PC-71/11 Page No. 14/18 to the testator or not but herein deceased testator had himself got the Will drafted and thereafter got it executed and registered. He has, in sound deposing mind, executed the Will so this is not a case where Will can be dismissed only on irrevelant grounds. I have gone through the Will in which every detail is mentioned. The deceased was conscious of all the properties available with him and has mentioned in the Will itself that he had read each word in the Will and has understood the same. The petitioner/beneficiary has no idea of Will. The deceased was aged about the 72 years and have died more than 2 and ½ years after executing Will. PW-4 has rather stated that rough draft was shown to him and it shows that deceased and advocate PW-4 has consulted with each other before and after drafting the Will and deceased was fully conscious as to what was being written therein. Both the witnesses PW-2 and 3 are independent witnesses. No dent has been created in their evidence. They are neighbourers and natural witnesses. Three witnesses have clearly stated that deceased was hail and heartly and fit and was not suffering from any serious problem. Even details of his ill health could not be brought on record. Witnesses produced by objector from Amar Leela Hospital is of no use because deceased has died near about 3 and ½ years after admission in the hospital and was not shown to be suffering from any serious ailment. The treatment by neurologist does not mean that he was seriously ill. Rather, chart of hospital shows that his blood pressure, pulse and respiration was PC-71/11 Page No. 15/18 almost normal. Haemoglobin was quite normal and was not suffering from any blood sugar. The chart summary also does not show that he was having some serious ailment as suggested by objectors. Rather, it has come in the evidence of objector O2W2 that deceased was looked after by his younger son in the hospital and he was admitted in hospital by Sh. Gursharan Singh. Rather, objector Sh. Kushwant Singh could not tell even the name of doctor who was treating him. Even he has no details of the test conducted on him and has no knowledge regarding treatment expenses and has no knowledge about the bill amount. Moreover, it has come in the evidence of O4W1 other objector and the brother-in-law of objector Sh. Kushwant Singh that Kushwant Singh has created false family settlement by forging the signatures of his sister Upjinder Kaur and younger brother Gursharan Singh so the intention of objector is well depicted and that is the reason why he has been ignored by his father while executing the Will containing averment that his younger son Gursharan Singh is looking after him and his elder son Kushwant Singh does not obey him. The witnesses have clearly deposed regarding mode and manner of the execution of Will. The objector has admitted the photographs of deceased father on the Will and one more important fact is that Will is registered one and all formalities have been complied with. There is no reason to question the veracity of the witnesses. The signatures sought to be proved as forged by objector by producing hand writing expert is of PC-71/11 Page No. 16/18 no consequences as it has to be kept in mind that there is difference of 14 years in the two documents i.e. admitted document and questioned document. Moreover, the Will also contains thumb impression and they have not been proved to be not of deceased. Rather, the expert witnesses has himself stated that there is variance in even admitted signatures which are S1 and S2. As far as devolution of property of deceased is concerned, the objector himself has admitted that his mother i.e. First wife of deceased was the owner of property and after her death all Lrs have relinquished their share in favour of father so ownership clealry vested in the father deceased and moreover he has not used the word in the Will that "this is his own self acquired proeprty" but has mentioned the word "I am absolute owner of property in question" so argument of objector that false averments have been made does not hold water and deceased was competent to execute the Will. Rather, to make the matter worse for objector, it has been admitted that construction has been carried out by deceased father of parties and not even single penny was spent by objectors thus in these circumstances, the objectors have not been able to create any dent in the execution of Will and they could not prove that deceased was suffering with paralysis or was unable to comprehend the things or was not able to understand as to what was being executed. So, I held that the Will is true and depicts real intention of executant and is genuine last will of deceased. However, perusal of Will shows that no executor PC-71/11 Page No. 17/18 was appointed hence probate cannot be granted and letter of administration is to be issued.
13.Relief:- In view of the above finding, the petition is allowed. Letter of administration is granted in favour of petitioner in view of last Will of the deceased dated 19.5.2001 to enable the petitioner to administer the property of deceased. It be accordingly granted after completion of required formalities in this context i.e. filing of requisite court fee, administration bond alongwith one surety bond of the amount of valuation in accordance with law. This file be consigned to record room.
Announced in the open court on (AJAY GOEL)
20.04.2013. ADJ-14(Central)Delhi.
PC-71/11 Page No. 18/18