Delhi District Court
Capt. Anil Kumar Malhotra (Retd.) vs State on 7 October, 2021
IN THE COURT OF SHRI UMED SINGH GREWAL:
ADDITIONAL DISTT. JUDGE02 (WEST): TIS HAZARI
COURTS: DELHI
PC No. 15970/16
CNR No. DLWT010012972015
Capt. Anil Kumar Malhotra (Retd.)
S/o Late Sh. Ram Chand Malhotra,
R/o H. No. K98, Ground Floor,
Kirti Nagar,
New Delhi110015. ....Petitioner
Versus
1. State
2. Ms. Anita Juneja
W/o Sh. G.K. Juneja,
D/o Late Sh. Ram Chand Malhotra
R/o H. No. 30/14, Old Rajinder Nagar,
New Delhi110060.
3. Ms. Archana Narula
W/o Sh. Rakesh Narula
D/o Late Sh. Ram Chand Malhotra
R/o H. No. 4/245, Second Floor,
Subhash Nagar,
New Delhi110027. ....Respondents
PETITION U/S 264 OF INDIAN SUCCESSION ACT FOR
GRANT OF PROBATE IN FAVOUR OF PETITIONER QUA
WILL DATED 18.02.2012 EXECUTED BY DECEASED
SMT. SHAKUNTLA MALHOTRA W/O LATE SH. RAM
CHAND MALHOTRA, R/O H. NO. K98, GROUND
FLOOR, KIRTI NAGAR, NEW DELHI
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 1 of 31
Date of filing of the case : 02.11.2015
Date of reserving the judgment : 23.09.2021
Date of pronouncement of Judgment : 07.10.2021
PC No. 15949/16
CNR No. DLWT010010922015
1. Anita Juneja
W/o Sh. G.K. Juneja
R/o H. No. 30/14, Old Rajinder Nagar,
New Delhi.
2. Archana Narula
W/o Sh. Rakesh Narula
R/o H. No. 4/245, Second Floor,
Subhash Nagar,
New Delhi110027. ....Petitioners
Versus
1. Sh. Anil Kumar Malhotra
R/o H. No. K98, Ground Floor,
Kirti Nagar, New Delhi.
3. Govt. of NCT of Delhi. ....Respondents
APPLICATIONH UNDER SECTION 276/278 OF THE
INDIAN SUCCESSION ACT, 1925 FOR PROBATECUM
LETTER OF ADMINISTRATION
Date of filing of the case : 01.04.2015
Date of reserving the judgment : 23.09.2021
Date of pronouncement of Judgment : 07.10.2021
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 2 of 31
JUDGMENT
1. This judgment shall dispose off two probate petitions titled as "Capt. Anil Kumar Malhotra (Retd.) Vs. State & Ors. and Anita Juneja & Ors. Vs. Anil Kumar Malhotra & Ors.", bearing PC nos. 15970/16 and 15949/16 respectively.
2. Both petitions are regarding two wills executed by late Smt. Shakuntala Malhotra in respect of property bearing no. K98, Ground Floor, measuring 150 sq. yds., Kirti Nagar, New Delhi (hereinafter referred to as subject property). The petitioner and respondents are her son and daughters.
FACTS AND EVIDENCE OF PC NO. 15970/16:
3. Petitioner's case is that his father Sh. Ram Chand Malhotra was sole and absolute owner of the subject property which was acquired by him out of his own resources and funds. He executed last will on 16.08.2002 and bequeathed the subject property to his wife Smt. Shakuntala Malhotra. After the death of Ram Chand Malhotra on 02.01.2010, Smt. Shakuntala Malhotra became the exclusive owner thereof on the strength of will. After the death of his father, the petitioner took care of his mother on every count including medical facility. He did not give any chance of complaint to his mother and sisters. Without any threat, pressure or coercion and in sound disposing mind, his mother executed will on 18.02.2012 in her
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 3 of 31 own handwriting, witnessed by Sh. Anil Kohli and Sh. Harish Kumar Trehan. Vide that will, the earlier will dated 29.07.2010 was revoked and subject property was bequeathed to the petitioner. Her bank balance and gold is to be divided in three equal shares between petitioner and respondent nos. 2 & 3. She expired on 23.12.2014 and after her death, the petitioner has become owner of the subject property and hence, he is entitled to probate.
4. Joint written statement of respondent nos. 2 & 3 is that the will dated 18.02.2012 is a forged and fabricated document which was executed under suspicious circumstances and genuinity of signatures of testatrix is doubtful. She was not in a proper state of mind and there is disproportionate distribution of the property as the respondents, despite being classI legal heirs, have been totally excluded from immovable property. It is written on a very small piece of paper and that is also one of the suspicious circumstance. It was not got registered. The petitioner never took care of his parents and only respondent nos. 2 & 3 used to take their care. The electricity bill filed by the petitioner in the civil suit shows that he was living separately from his parents. So, there was no occasion for the mother to bequeath property to the petitioner.
5. Notice of the petition was issued to State through Chief Secretary, Govt. of NCT and collector of the concerned area where the suit property was situated. The citation to the general public was
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 4 of 31 published in the Hindi daily newspaper "Rashtriya Sahara" dated 31.01.2016 in response to which no public person filed any objection.
6. The Tehsildar, Rajouri Garden filed valuation report in respect of subject property assessing to be of Rs. 58,97,728/ (Rupees Fifty Eight Lacs Ninety Seven Thousand Seven Hundred & Twenty Eight only).
7. Following issues were framed on 30.03.2016: (1). Whether the Will dated 18.02.2012 executed by Late Smt. Shakuntala Malhotra W/o Late Sh. Ram Chand Malhotra is her last, genuine, legal, valid Will and duly executed in his sound disposing mind? OPP (2). Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP (3). Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 & 3 in the written statement/objections? OPD (4). Relief.
8. In order to prove the case, the petitioner examined two witnesses.
9. PW1 Capt. Anil Kumar Malhotra is petitioner himself and he repeated the contents of written statement in his affidavit in evidence
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 5 of 31 Ex.PW1/A. He relied upon following document:
(i). Ex.PW1/1 is death certificate of Smt. Shakuntala Malhotra;
(ii). Ex.PW1/2 is death certificate of Sh. Ram Chand Malhotra;
(iii). Ex.PW1/3 is electricity bill;
(iv). Ex.PW1/4 is copy of ration card;
(v). Ex.PW1/5 is copy of Aadhar Card;
(vi). Ex.PW1/7 is Will dated 18.02.2012 executed by Smt. Shakuntala Malhotra;
(vii). Ex.PW1/9 is writing of Smt. Shakuntala Malhotra written during her lifetime;
(viii). MarkA is typed copy of Will dated 16.08.2002 executed by Sh. Ram Chand Malhotra;
(ix). MarkB is writing of Smt. Shakuntala Malhotra.
PW2 Sh. Anil Kohli is the attesting witness who deposed that he was neighbour of the testatrix who executed the will Ex.PW1/7 in his presence and in the presence of Harish Kumar Trehan. All three had signed the will in the presence of each other. He identified the signatures of the testatrix at pointsA, A1 and B, his own signatures at pointC & F and of second attesting witness Harish Kumar Trehan at pointsD & E. He concluded the evidence by saying that he was asked by the deceased to sign the will.
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 6 of 31
10. Respondents examined three witnesses.
11. Respondent no. 2 Smt. Anita Juneja deposed as RW1 all the facts which are finding place in her written statement. She stated on oath that the petitioner used to live separately from their mother. He was in occupation of two rooms, one kitchen, one toilet and one bedroom of the subject property. He had a separate kitchen from his mother. He and their mother used to pay electricity bills separately. She next deposed that the petitioner was a disobedient son and never took care of his old parents. He did not provide them any necessity of life and that fact is clearly visible in will dated 16.08.2002 of their father in which it is mentioned that the petitioner and their father used to pay house tax and water bills in equal proportion. She next deposed that her mother was not in a fit state of mind at the time of execution of the will as she used to be treated by Dr. Rajesh Nagpal for Alzeimer's dementia.
RW2 Dr. Rajesh Nagpal, Consultant Neuro Psychiatrist, deposed that he knew the testatrix as his parents. First time she came to him on 21.05.2012 and she had illness namely Alzeimer's dementia for the last two years and she was suffering from hearing loss also. She visited him on 26.06.2012, 21.07.2012, 22.08.2012, 13.12.2012, 04.09.2013, 04.09.2014 and 27.03.2014. He further deposed that she was diagnosed as suffering from Alzeimer's dementia and was given Pharmaco therapy. He placed on file her medical record as
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 7 of 31 Ex.PW2/A (running into 6 pages).
RW3 Smt. Vandana, maid, deposed that she alongwith respondent nos. 2 & 3 used to take care of food and other needs of Smt. Shakuntala Malhotra. Initially, she was paid a salary of Rs. 1700/ per month for preparing only breakfast but subsequently, she started doing all the work at a salary of Rs. 11,000/ per month which used to be paid by Smt. Anita. She worked there for 4½ years. She next deposed that the petitioner and his family used to reside in the subject property but separately from the testatrix. She lastly deposed that Smt. Shakuntala Malhotra was suffering from various health problems. She used to forget things and persons. In her last time, her all expenses were born by the respondents.
FACTS AND EVIDENCE OF PC NO. 15949/16:
12. Petitioners' case is that their father Sh. Ram Chand Malhotra was the absolute owner of the subject property and he made will of the same in favour of their mother and expired on 09.10.2010. Their mother executed will dated 29.07.2010 bequeathing the subject property equally amongst them and respondent no. 1. After the death of their mother on 23.12.2014, they and respondent no. 1 became owner thereof. Except them, no other legal heir was left behind by their mother.
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 8 of 31
13. Written statement of respondent no. 1 is to the effect that the will dated 29.07.2010 is a forged and fabricated document. The petition has not been verified by one of the witnesses and hence, it is liable to be dismissed on that ground alone. His mother had bequeathed the subject property to him exclusively by writing a will in her own handwriting on 18.02.2012 in a fit state of mind in the presence of two witnesses. The respondents are not aware of even the nature of the property as in earlier civil proceedings, they claimed the subject property as ancestral one. If their claim is taken as true, even then the case be dismissed as the will of ancestral property cannot be made. The last objection is that it was he and his wife who used to take care of his mother as the petitioners were married long back and after marriage, they were settled in their matrimonial homes. They never took care of the testatrix.
14. Notice of the petition was issued to State through Chief Secretary, Govt. of NCT and collector of the concerned area where the suit property was situated. The citation to the general public was published in the Hindi daily newspaper "Statesman" dated 19.10.2015 in response to which no public person filed any objection.
15. The Tehsildar, Rajouri Garden filed valuation report in respect of subject property assessing to be of Rs. 58,97,728/ (Rupees Fifty Eight Lacs Ninety Seven Thousand Seven Hundred & Twenty Eight only).
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 9 of 31
16. Following issues were framed on 27.01.2016: (1). Whether the deceased Smt. Shakuntala Malhotra executed a valid and enforceable Will dated 29.07.2010 as claimed by the petitioner? OPP (2). Whether the petitioners are entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP (3). Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no.1 in the written statement/objections? OPD (4). Relief.
17. In order to prove the case, the petitioner examined four witnesses.
18. PW1 Smt. Anita Juneja is petitioner no. 1 herself and she repeated the contents of her petition in affidavit in evidence Ex.PW1/A. She relied upon following documents:
(i). Ex.PW1/1 is Will dated 29.07.2010 executed by Smt. Shakuntala Malhotra;
(ii). Ex.PW1/4 is death certificate of Sh. Ram Chand Malhotra;
(iii). Ex.PW1/5 is death certificate of Smt. Shakuntla Malhotra;
(iv). MarkA is photocopy of will dated 16.08.2002.
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 10 of 31 Ms. Archana Narula is PW2 and her evidence is not more than the testimony of PW1.
PW3 Sh. Shyam Lal Kapoor, maternal uncle (Mama) of the parties, is the attesting witness in whose presence will Ex.PW1/1 was executed by his sister Smt. Shakuntala Malhotra by signing at points A & A1. He identified his own signatures at pointA & B and of second attesting witness Ms. Rita Wadhwa at pointB on the will. He deposed that all three persons had signed the will in the presence of each other and it was got registered on the same day.
PW4 Ms. Rita Wadhwa is second attesting witness and she deposed all the facts stated on oath by PW3.
19. Respondent examined only himself as RW1. He repeated the contents of his written statement in affidavit in evidence Ex.RW1/A. He relied upon following documents:
(i). Ex.RW1/2 is copy of order dated 07.03.2015 in Suit no. 45/2015 titled as Captain Anil Kumar Malhotra (Retd.) Vs. Anita Juneja;
(ii). MarkA is copy of will dated 18.02.2012 of deceased Smt. Shakuntla Malhotra.
20. UNDISPUTED FACTS:
(i). The subject property was initially owned by the
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 11 of 31 parties' father Sh. Ram Chand Malhotra. He made will dated 16.08.2002 in favour of his wife Smt. Shakuntala Malhotra.
(ii). Sh. Ram Chand Malhotra expired on 09.01.2010.
(iii). Smt. Shakuntala Malhotra expired on 23.12.2014.
Issue Nos. 1, 2 & 3 of P.C. No. 15970/16:
(1). Whether the Will dated 18.02.2012 executed by Late Smt. Shakuntala Malhotra W/o Late Sh. Ram Chand Malhotra is her last, genuine, legal, valid Will and duly executed in his sound disposing mind?
OPP (2). Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP (3). Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 & 3 in the written statement/objections? OPD
21. All these issues are interconnected and hence, these are being taken up together.
22. Ld. counsel for the respondents argued that the will dated 18.02.2012 propounded by the petitioner is false and fabricated. During those days, the testatrix was not mentally fit to make the will as she was suffering from Alzeimer's dementia. She used to forget things and persons.
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 12 of 31 They argued that both attesting witnesses were procured by the petitioner. They are his close friends and hence, the will cannot be said to have been attested properly as per section 63 of the Indian Succession Act, 1925.
He next argued that the petitioner did not use to maintain his mother. He had separate kitchen and residence from her. The electricity bills also used to be paid separately. Only respondents used to maintain her. As they were residing in their matrimonial homes, they had employed Vandana/RW3 as maid to take care of their mother.
Last argument is that the whole property has been bequeathed to the petitioner despite the fact that he did not use to take her care. This is disproportionate distribution of the property and creates doubt about the will.
23. On the other hand, ld. counsel for the petitioner argued that the will dated 18.02.2012 is in the handwriting of the testatrix. It was executed in the presence of petitioner and PW2. In order to show that the will was written by the testatrix herself, the petitioner placed on record her another handwriting as Ex.PW1/9. Her handwriting and signatures have been identified by petitioner and PW2. On the other hand, the respondents did not file any other handwriting of the testatrix to show that the will was not in her handwriting. No handwriting expert has been examined to prove that the will was not in the handwriting of the testatrix.
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 13 of 31 On mental capability of the testatrix, counsel for the petitioner argued that the lady was in perfect state of mind on 18.02.2012 while writing the will. He submitted that the evidence of RW2 Dr. Rajesh Nagpal cannot be believed because all the documents produced by him are not bearing the signature of the testatrix and hence, it cannot be said that the record pertains to the lady. Also, RW2 nowhere deposed that the testatrix was not in a fit state of mind on 18.02.2012.
On attesting witnesses, he argued that the PW2 is the neighbour of the testatrix and he attested the will in that capacity. He is an independent witness despite being friend of the petitioner.
Regarding taking care of the testatrix, he argued that after marriage, respondent nos. 2 & 3 had settled in their matrimonial homes, which are not near the house of the lady. The testatrix used to live with him and his family in the subject property. His wife alongwith the maid Vandana used to take her care. He further argued that the evidence of RW3 Vandana cannot be believed because she did not produce salary receipt to prove that she was employed by the respondents to take care of the lady.
Counsel for the petitioner further argued that the respondents did not give suggestion to PW1 and PW2 that the will Ex.PW1/7 was not in the handwriting and was not bearing the signature of the deceased. No suggestion was given to them that the deceased did not have proper state of mind at that time. They did not suggest them that the testatrix did not know Hindi/English i.e. the
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 14 of 31 languages in which the will is written. By not giving these suggestions, the respondents have admitted the case of the petitioner in toto. In this regard, he relied upon AIR 2016 SC 2250.
Last argument is that the testatrix was the sole and absolute owner of the subject property as she had received the same from her husband on the strength of will dated 16.08.2002. She was at full liberty to dispose off that property in the mode and manner liked by her. Out of love and affection, she bequeathed the property to petitioner.
24. It is the deposition of petitioner/PW1 that will Ex.PW1/7 was written by his mother in his presence and in the presence of PW2 Anil Kohli. It is bearing the signature of the testatrix as well as of PW1 and PW2. In order to show that the will was in the handwriting of his mother, the petitioner placed on record a paper bearing handwriting of the lady as Ex.PW1/9.
The respondents did not get compared the handwriting and signature purporting to be of the testatrix and appearing on will Ex.PW1/7, with any other handwriting of the lady. Mere taking of plea is not sufficient. Such plea is to be substantiated by leading positive evidence. The respondent did not examine any handwriting expert to the effect that the will Ex.PW1/7 was not in the handwriting and was not bearing the signature of their mother. So, they have failed to prove that the will is a fabricated document.
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 15 of 31
25. On mental capability of the testator to make a will, following was held by Hon'ble High Court of Delhi in Shri K.L. Malhotra v. Smt. Sudarshan Kumari & Ors., (2008) 149 DLT 783: "32. As the Wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. Therefore, it is wrong to suppose that those qualities of mind should be possessed by the testator in the highest degree, position or to the same extent as before the illness in order to enable him to validly make his Will. Section 59 of the Indian Succession Act requires that the testator should have a sound mind. The sound mind referred to does not mean that the testator should have his mental faculty in their fullest vigour, but means that he should have the capacity to understand the nature of his property; memory to remember the relations and persons normally having claims on his bounty and has also a judgment. As observed by Their Lordships of Privy Council in the decision Judah v. Isolyne, AIR 1945 PC 174, the fact that the testator was unwell when he executed the Will is a long way from saying that he had no testamentary capacity. The testator does not have to be found in perfect state of health to have his Will declared valid. It is sufficient to prove that he was able to outline the manner in which his estate was to be disposed of".
So, as per above citation, the soundness of mind of the testator should not be to its fullest vigour. It is to be of that much grade which makes him able to tell the manner in which his estate
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 16 of 31 was to be disposed off.
In Ramabai Padmakar Patil vs. Rukminibai Vishnu Vekhane, (2003) 8 SCC 544, the Hon'ble Apex Court held that the objectors had not led evidence to show that at the time of execution of the will, the testatrix was suffering from any ailment which had impaired her mental faculty to the extent that she was unable to understand the real nature of the documents. The testatrix was hard of hearing and unable to walk. That condition was not taken by the Hon'ble Apex Court affecting her mental condition. In Satya Pal Sobti Vs. Achraj Nath & Ors., 2018 SCC OnLine Del 9091, the testator was suffering from cataract and agony for the demise of her son. Still, she was considered a person of sound mind to execute the will.
So, the law of the land is that the evidence should be to the effect that the testator was not mentally fit to understand the nature and consequences of his acts. That capability is correlative to his age and illness as only old and sick persons make wills generally.
26. RW2 Dr. Rajesh Nagpal had treated the testatrix. Her treatment had started on 21.05.2012 when she visited his clinic first time. After examining her, RW2 came to the conclusion that the lady was suffering from Alzeimer's dementia. She visited him on several times i.e. 26.06.2012, 21.07.2012, 22.08.2012, 13.12.2012, 04.09.2013, 04.09.2014 and 27.03.2014. He placed on record her medical record as Ex.PW2/A (running into 6 pages) which has been
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 17 of 31 objected by the counsel of petitioner on the ground that the same is not bearing the signature of the testatrix. But such objection is of no consequence because the testatrix had visited the doctor only as outdoor patient. Such patients, as being observed in everyday life, are not required to sign any document to take treatment from the doctor. The plea that the record produced by RW2 cannot be relied upon being subsequent to the date of execution of the will, is also not maintainable because it is very much possible that the testatrix would have visited the said doctor first time only after the will dated 18.02.2012. If the respondents wanted to create record regarding the mental unfitness of the testatrix, the record would have been only for few months after the date of execution of the will. But the record produced by RW2 is ranging from 21.05.2012 to 04.09.2014.
The treatment of the testatrix by RW2 has further been corroborated by the receipts Ex.RW1/10 (colly.) regarding purchase of the medicines prescribed by RW2. These receipts range from 29.08.2012 to 31.01.2014.
27. So, RW2 has successfully proved that in May 2012, the lady was suffering from Alzeimer's dementia. Moreover, RW3, maid, Vandana also deposed that the deceased was suffering from various health problems and one of them was that she used to forget things and name of persons. To the same effect is the evidence of RW1. Due to suffering from Alzeimer's dementia, the deceased was not in a fit state of mind to make will in 2012 as such illness affects mental
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 18 of 31 faculty to make decision.
28. The attesting witnesses to the impugned will are PW2 Anil Kohli and Harish Kumar Trehan. Admittedly, they are the friends of petitioner. PW2 Anil Kohli is neighbour of the petitioner. In order to show impartiality, PW2 deposed in para no. 2 of affidavit in evidence that he was known to the executant of the will. But in cross examination, he admitted that he was friend of the petitioner and he and Harish Trehan were called by him to his house to witness the execution of the will.
Both attesting witnesses are the friends of the petitioner. They were not called by the deceased to witness the will. Rather, they were invited by the petitioner himself. It is the petitioner who is the sole beneficiary of the will. These facts are compelling this court to reach to the conclusion that both attesting witnesses are the interested witnesses and hence, the attestation of the will is not as per the spirit of provisions of section 63 of Indian Succession Act.
29. The petitioner deposed that the deceased used to live with him in the subject property. Respondent nos. 2 & 3 were away to their matrimonial homes and hence, his wife and maids used to look after his mother. He denied the suggestion that the deceased was maintained by his sisters.
But RW1 Anita Juneja deposed that she and her sister Archana Narula used to take care of their mother. As they were
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 19 of 31 residing separately from the lady, they had employed maids for that purpose who used to be paid by them.
30. RW3 Vandana is an independent witness. The petitioner also admitted that one of the maid was Vandana i.e. RW3, who deposed that she was employed by the respondents to take care of their mother. They used to pay her the salary. She could not produce any document to the effect that salary used to be paid to her by the respondents. But that is of no use for the petitioner because it can be seen in daily life that the maids and servants are generally paid without obtaining their signatures or issuing them any receipt etc. As per RW3, the petitioner was living separately from the testatrix and they had separate kitchens. To the same effect is the evidence of RW1. Moreover, as per the will dated 16.08.2002 of father of the parties which has been admitted by them as true and correct, the petitioner was provided by his father separate accommodation in the subject property. It is further mentioned in the will that the petitioner and his father used to pay house tax and water bills in equal proportion and electricity bills separately. The petitioner admitted in cross examination that the electricity bill Ex.PW1/3 was in his name and was regarding the backside portion of the subject property. He admitted it correct that the electricity meter was energized in the year 2000. It is pertinent to mention that the amount mentioned in that bill was payable on 16.12.2014 and was for the electricity consumed from 22.10.2014 to 26.11.2014. The bill
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 20 of 31 suggests that the petitioner's electricity meter was different from the electricity meter of his parents since 2000 and that arrangement had continued till the death of the testatrix.
So, the respondents have successfully proved that the testatrix was residing separately from the petitioner. She was running a separate kitchen. She herself used to pay the electricity bills. She was taken care of by maid RW3. The petitioner has failed to prove that it was he and his wife who used to maintain the lady. In this background, bequeath of the whole property to the petitioner, is definitely questionable.
31. It is correct that the respondents did not give suggestions to PW1 and PW2 that the will Ex.PW1/7 was not in the handwriting of their mother and that the same was not bearing the signature of PW1, PW2, deceased and another attesting witness. But it is also to be kept into mind that the respondents have filed a separate petition bearing P.C. No. 15949/16 which is being disposed off simultaneously. In that case, the respondents of this case have clearly alleged that their mother was not fit to make statement and that the will has been forged and fabricated. So, their crystal clear case is that the will is forged and fabricated and at that time, their mother was suffering from Alzeimer's dementia. Such were not the facts in the cited case and hence, it cannot be said that by not giving the suggestions enumerated by counsel for petitioner, respondents have admitted his case.
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 21 of 31
32. Vide impugned will, the respondents have been excluded from inheriting the suit property. The whole property has been bequeathed to the petitioner and that fact is suspicious circumstance in view of Kavita Kanwar Vs Mrs. Pamela Mehta & Ors. AIR 2020 SC 2614. In the cited case, the testatrix had two daughters and a son. She bequeathed most of the property to her younger daughter. She excluded the son totally and made only meager provision for the widowed daughter. The major beneficiary had played role in the execution of the will. Those circumstances made the Hon'ble Apex Court to hold the will doubtful. In the case in hand also, the will was executed in the presence of the petitioner and the attesting witnesses are his friends who were arranged by him. He is the only beneficiary as both sisters have been completely excluded. Moreover, the testatrix was not in a fit state of mind to execute will as she was suffering from Alzeimer's dementia. Hence, the cited case squarely covers the case of the respondents.
33. In view of above discussion, it is held that the will dated 18.02.2012 is not genuine, legal, valid and was not executed in sound state of mind. All these issues are decided in favour of the respondents and against the petitioner.
Issue Nos. 1, 2 & 3 of P.C. No. 15949/16:
(1). Whether the deceased Smt. Shakuntala Malhotra executed a valid and enforceable Will
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 22 of 31 dated 29.07.2010 as claimed by the petitioner? OPP (2). Whether the petitioners are entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP (3). Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no.1 in the written statement/objections? OPD
34. All these issues are interconnected and hence, are being taken up together.
35. Ld. Counsel for respondent no. 1 argued that the probate petition is mandatorily required to be verified by one of the attesting witnesses to the will. But the present petition has not been verified and hence, it is liable to be dismissed on that score alone.
Next argument is that both attesting witnesses are interested one as they used to visit the house of the petitioners frequently.
He next submitted that both petitioners were present in the office of SubRegistrar at the time of execution and registration of the will and hence, they influenced the making thereof in their favour.
Next argument is that the impugned will is dated 29.07.2010, but the lady had executed another will on 18.02.2012 with her own handwriting which clearly show that she had revoked the will dated 29.07.2010. So, the impugned will has been replaced
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 23 of 31 by the will dated 18.02.2012.
Further arguments are that the attesting witnesses nowhere deposed that they had signed the will in the presence of the testatrix and the testatrix had signed the will in their presence. So, there is no attestation of the will as per section 63 of the Indian Succession Act. He next submitted that the attesting witnesses deposed in cross examination that they had signed some papers and their number was two. They nowhere specified that the papers signed by them was the will. He lastly submitted that the number of the pages of the will is three and not two as deposed by attesting witnesses.
36. Counsel for petitioner admitted that the petition has not been verified by one of the attesting witnesses as per the provisions of Section 281 of the Act. But that step is not mandatory and is directory only and petition cannot be dismissed on that ground alone.
Next argument is that the first attesting witness PW3 Shyam Lal Kapoor is the maternal uncle of the parties and in this way, he is equally connected with them. The second witness/PW4 Ms. Rita Wadhwa was living in the neighbourhood of the testatrix and was known to her. So, both witnesses are independent and not interested. He admitted that the petitioners were present at the time of execution of the will, but they did not put undue pressure upon their mother. Rather, she bequeathed the property to her three children in equal shares. Next submission is that the impugned will is registered one whereas the will executed in favour of respondent no. 1 is just on a
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 24 of 31 piece of paper and unregistered one. So, it cannot be held that the said will has revoked the impugned will as the subsequent will is not legal and valid.
It is next submitted that both the attesting witnesses deposed that they and testatrix had signed the will in presence of each other and hence, the will was attested as per Section 63 of the Act. He next submitted that the witnesses deposed in examination in chief that the document signed by them was the will. If they did not specify in cross examination that the document signed by them was will, it is the fault of counsel for the respondents as he should have asked them to specify.
37. In Krishan Dass Gupta Vs. State & Ors., in Test Case no. 44/1999 and Test Case No. 51/2004, decided on 16 th February 2012, similar was the issue before Hon'ble High Court of Delhi which held that provisions of section 281 of the Act were only directory and not mandatory and that the probate petition cannot be dismissed on the score that it was filed without verification of atleast one attesting witness to the will. Following more was held by the High Court: "35. The aforesaid issued was framed in view of the preliminary objection no. 2, having been taken by the respondent no. 3 that the petition is not maintainable because the petition is not properly verified in the manner and to the effect as provided in Section 281 of the Indian Succession Act, 1925. At the time of hearing, however, this issue was not
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 25 of 31 seriously pressed, presumably for the reason that it is settled law that the provisions of Section 281 are not mandatory but only directory and no petition can be dismissed on the score that it is filed without the verification of at least one of the two attesting witnesses to the will.
36. In the case of Nand Kishore Rai and Anr. Vs. Mst. Bhagi Kuer & Ors., AIR 1958 All 329, it was observed as under: "Verification of a petition required under S. 281 similar to verification required of pleadings, including a plaint, under order 6 Rule 15 Civil Procedure Code and has no greater effect or value. Omission to verify, or defective verification, of a pleading is a mere irregularity within S. 99 CPC and is never fatal. The provision of S. 281 of the Succession Act is less drastic than that of Order 6 Rule 15 and an omission to verify, or a defective verification of, a petition for probate cannot have a more serious effect than that of a plaint. The provision in S. 281 is merely directory and not mandatory, i.e. noncompliance with it is not intended to lead to the rejection of the petition."
38. To the same effect are the following judgments:
(i). Kulbir Singh Vs. State & Ors., 52(1993) DLT 57; and
(ii). Khem Chand & Ors. Vs. State & Ors., (2010) 169 DLT 556.
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 26 of 31
39. In the case in hand, the petition has not been verified by one of the attesting witnesses. But in view of above citations, the petition cannot be dismissed on that ground alone.
40. Second attesting witness i.e. PW4 Smt. Rita Wadhwa deposed in cross examination that she was neighbour of respondent no.1 and was also friend of petitioner no. 2. She was knowing their family for last 33 years. It is pertinent to mention that the case of the respondent no. 1 is that after marriage, his sisters had started living in their matrimonial homes. So, during the days of execution of the impugned will, the petitioners were not residing in the neighbourhood of PW4. It was only respondent no. 1 and the deceased, who used to live in her neighbourhood. Hence, it can be said with certainty that PW4 Rita Wadhwa is not an interested witness. She had signed the will as a neighbour of the deceased.
PW4 Shyam Lal Kapoor deposed in cross examination that he used to visit the house of the petitioner. It is pertinent to mention that he is the brother of the deceased i.e. he is maternal uncle of not only the petitioners but also respondent no. 1. In that capacity, no exception can be taken if he visited the house of his sister's daughters. He is equally related to the parties and hence, he is also not an interested witness.
41. PW3 deposed in cross examination that his sister/deceased told him on phone that she wanted to execute a will. On her
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 27 of 31 invitation, he visited Janakpuri on 29.07.2010 and met his sister, both petitioners and PW4 in Hilton Hotel and thereafter, all proceeded to SDM office, Janakpuri where they took tea and snacks and thereafter, the will was executed. So, the evidence of PW3 is proving the fact that both petitioners were present in the office of SubRegistrar where the will was registered. But mere presence of the petitioners does not mean that they had exerted undue pressure upon their mother because they are not the sole beneficiary. Rather, the subject property has been bequeathed to her all children equally. Even if the will had not been executed, the petitioners would have got the same share by inheritance.
Moreover, the impugned will is registered one. Registration of a will is, though, not a conclusive proof of its authenticity, but it lends some credit definitely because for the purpose of registration, the testator is to visit the office of SubRegistrar which is a public office and is manned by an officer of high rank. So, it is reasonable to presume that the testatrix had understood the nature and purpose of her visit to the government office. To this effect is Ashok Kumar Dua Vs Dalvir Kumar Dua & Ors. 2008 (151) DLT 469.
42. Counsel for the respondent is totally wrong to argue that the attesting witness did not depose that they and the deceased had signed the will in presence of each other. Perusal of affidavit in evidence of PW3 and PW4 shows that the facts to that effect have been deposed by them not once but twice. So, the attestation of the
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 28 of 31 will is as per Section 63 of the Act.
43. It is correct that PW3 deposed in cross examination that he had signed some papers in the office of SDM Janakpuri and the number of papers was two. PW4 also deposed that she had signed two papers which were given to her by the testatrix.
Merely terming the office of SubRegistrar as the office of SDM, does not mean that the PW3 did not visit the office of Sub Registrar for the registration of the will. General public is not concerned with the designation of the office. Their main concern is the business which is done in that office. It has been deposed specifically by PW3 that the will was registered by his sister in that office.
It is correct that PW3 and PW4 did not specify in cross examination the documents signed by them. But they deposed in clear terms in examination in chief that they had signed the will of the testatrix. They not only identified their own signatures but also of the deceased. It was for the counsel for respondent to ask them about the nature of the papers signed by them. But he asked only about papers and did not go on that particular question.
It is correct that the number of pages of the will is three and not two as deposed by the attesting witnesses. But it is a minor variation between oral and documentary evidence. It is pertinent to mention that wherever there is an inconsistency between oral and documentary evidence, it is the documentary evidence which prevails
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 29 of 31 upon the oral statement.
44. In view of above discussion, all these issues are decided in favour of petitioners and against respondent no. 1.
Issue No. 4 of P.C. No. 15970/16 (Relief):
45. In view of above findings and observation, it is held that the petitioner is not entitled to any relief. His case is dismissed. No order as to costs.
Issue Nos. 4 of PC No. 15949/16 (Relief):
46. The petitioners have prayed for grant of Probate/Letter of Administration in respect of the will dated 29.07.2010 executed by Late Smt. Shakuntala Malhotra. However, the perusal of the will (Ex.PW1/1) reveals that petitioners have not been named as Executors therein and as such the probate, in respect of the Will in question cannot be granted in favour of the petitioners in terms of Section222 of Indian Succession Act, which provides that probate shall be granted only to an Executor appointed by the Will. In these circumstances and in view of the provisions of Section222 of Indian Succession Act, only Letter of Administration can be issued in respect of the property mentioned in the said Will.
Therefore, in view of the above discussion, petitioners are entitled to letters of administration in respect of the property bearing
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 30 of 31 no. K98, Ground Floor, measuring 150 sq. yds., Kirti Nagar, New Delhi of deceased as mentioned in the will on furnishing Administrationcumsurety bond and court fees on the value of the abovesaid property which has been assessed as Rs. 58,97,728/ (Rupees Fifty Eight Lacs Ninety Seven Thousand Seven Hundred & Twenty Eight only).
Further, the petitioners are directed to file the inventory of all the immovable properties within six months and final statement of account within one year from the date of receipt of formal letter of administration. The formalities of issuance of Letter of Administration shall completed by the petitioners within six months from the date of the judgment as per Section 290 & 291 read with Section 317 of Indian Succession Act.
47. It further clarified that the question of title, share or ownership of immovable properties mentioned hereinabove is not decided by this Court.
48. File be consigned to the Record Room. Copy of this judgment be also placed in case bearing PC No. 15949/16.
Announced in the open court
Today on 07.10.2021 (Umed Singh Grewal)
Addl. District Judge02 (West)
Tis Hazari Courts, Delhi
(i). Capt. Anil Kumar Malhotra vs. State & Ors., PC No. 15970/16; and
(ii). Anita Juneja & Anr. vs. Anil Kumar Malhotra & Anr., P.C. 15949/16 page 31 of 31