Delhi District Court
Sh. Dharamvir vs . The State on 22 December, 2012
P.C. No. 42/10
Sh. Dharamvir Vs. The State
IN THE COURT OF SH. ALOK AGARWAL ADJ:
SOUTH WEST: NEW DELHI
P.C. No. 42/10
UID No. 02405C0364542010
In the matter of :-
Sh. Dharamvir
S/o Late Sh. Rattan Lal
R/o RZ-31-B, Indra Park
Prajapat Colony,
Bindapur, Uttam Nagar,
New Delhi - 110059.
...Petitioner
Versus
The State
...Respondent
Filed on : 19.11.2011
Reserved on : 21.12.2012
Decided on : 22.12.2012
JUDGMENT :-
1. This is a petition under Section 276 of Indian Succession Act, 1925 for grant of probate filed by petitioner Dharamvir in respect of Will dated 20.12.09 stated to have been executed by one Smt. Ram Murti Devi W/o Late Shri Suraj Mal.
2. It is stated in the petition that Smt. Ram Murti Devi and her husband Suraj Mal did not have any issue out of the wedlock. Shri Suraj Mal who was the paternal uncle ( fufa) of the petitioner PC No: 42/10 1 Page 1/13 P.C. No. 42/10 Sh. Dharamvir Vs. The State Dharamvir died due to heart stroke on 26.06.09. He was absolute owner of property No. RZ-31-B, A Block, Indira Park, Parjapat Colony, Bindapur, Uttam Nagar, New Delhi measuring 100 Sq. yards being his self acquired property. He had executed a registered Will dated 24.06.2004 in favour of his wife Smt. Ram Murti Devi bequeathing the said property to her. Smt. Ram Murti Devi filed a petition under Section 276 of Indian Succession Act for grant of probate of the said Will but during its pendency, she breathed her last on 25.02.2010. Before her death, Smt. Ram Murti Devi executed a Will dated 20.10.2009 in favour of petitioner Dharamvir in presence of three witnesses. Both Suraj Mal and Murti Devi being issueless used to consider the petitioner as their son and their love and affection was reciprocated by petitioner. On these premises, the petitioner seeks probate of Will dated 20.12.09 in his favour.
3. Here, it may be noted that the probate petition filed by Smt. Ram Murti Devi seeking probate of the Will executed by her husband Suraj Mal in his favour was dismissed as infructious by my Ld. Predecessor consequent upon the death of Ram Murti Devi.
4. Notice of this petition was issued to the Collector for filing the valuation report. Notice was also displayed on the notice board of this Court. Citation was ordered to be published in newspapers ' Hindu' and 'Veer Arjun'.
5. Newspapers 'The Statesman' dated 11.02.2011 and 'Veer Arjun' dated 04.02.2011 where the citation was published are on the record.
6. Tehsildar ( Patel Nagar) has filed the valuation report as per which value of the property i.e. RZ-31B, Indira Park, Parjapat Colony, Near Bindapur, Uttam Nagar, New Delhi is Rs. 20,57,875/-.
PC No: 42/10 2 Page 2/13 P.C. No. 42/107. Consequent upon issuance of notice, objections were filed by one Smt. Kirti Devi wife of present petitioner Dharamvir Singh claiming that late Shri Suraj Mal had during his life time executed a registered Will dated 29.05.98 in her favour and thus Smt. Ram Murti Devi did not have any locus to bequeath the said house in favour of anyone. It is further stated that the marital relations between Kirti Devi and Dharamvir was not smooth and Dharamvir had left the objector alone with two children. The objector was residing in the suit property with Shri Suraj Mal and his wife Ram Murti Devi since long and was serving them as a dutiful daughter.
8. 'No Objections' along with affidavits for grant of probate in favour of petitioner have been filed by sisters of the deceased namely, Ratni Devi and Omwati.
9. Matter was listed for petitioner's evidence and the petitioner has examined six witnesses. The respondent in her turn examined four witnesses. It was when the matter was listed for final arguments, that my Ld. Predecessor noticed that issues had not been formally settled in this case. Accordingly on 24.05.2012 the following issues were settled:
1. Whether Suraj Mal had executed legally and validly, the Will 26.04.04 in favour of Smt. Ram Murti Devi? OPP
2. Whether Smt. Ram Murti Devi had executed legally and validly, the Will dated 20.12.2009 in favour of petitioner Dharamvir? OPP PC No: 42/10 3 Page 3/13 P.C. No. 42/10 Sh. Dharamvir Vs. The State
3. Whether deceased Ram Murti Devi was in sound disposing mind and health at the time of execution of Will dated 20.12.2009? OPP
4. Whether the Wills dated 26.04.2004 and 20.12.2009 are forged or fabricated? OPD
5. Whether any Will dated 29.05.98 was legally and validly executed by Shri Suraj Mal inf avour of objector Kirti Devi, if so, its effect?
6. Relief.
10. The petitioner has examined six witnesses in all. PW1 Hem Raj is the attesting witness of both the Wills executed by Shri Suraj Mal on 29.05.98 as well as on 24.06.04. However in his affidavit, he deposed only with regard to the Will dated 24.06.04 in favour of Smt. Ram Murti Devi. PW2 Ram Raj Sharma and PW3 Prashant Rajput are attesting witnesses of the Will dated 20.12.09. PW4 Raj Kumar, the record keeper from office of Sub Registrar-II, Kashmiri Gate proved the sale deed dated 11.04.1974 of the property in question in favour of Shri Suraj Mal. Krishan Kumar, LDC in the office of Sub Registrar, Janakpuri appeared and proved the Will dated 24.06.2004 executed by Shri Suraj Mal. However he has been mistakenly numbered as PW4 on record although he was the fifth witness to depose. Similarly the petitioner himself who deposed in the end has also been wrongly numbered as PW4. He shall be referred to as PW-6.
11. The objector has produced four witnesses. She herself deposed as RW1. She proved the record of the Will dated 29.05.1998 executed by Shri Suraj Mal in her favour through Krishan PC No: 42/10 4 Page 4/13 P.C. No. 42/10 Sh. Dharamvir Vs. The State Kumar, LDC from office of Sub Registrar-II, Janakpuri. RW3 Rajan Mahajan is the attesting witness of the said will.
12. After closing of evidence of both sides, I have heard Shri Umesh Suri, Advocate appearing on behalf of petitioner and Shri Sushil Panwar, advocate on behalf of objector and have gone through the evidence on record at length.
13. Ld. Counsel for the objector has, apart from arguing on the issues settled, also contented that the petition as filed by the petitioner was not maintainable in the form which has been filed. He has argued that it has not been specifically averred in the petition that the Will dated 20.12.09 was the last Will of the testatrix. He has also contended that the petition has not been verified by one of the attesting witness as is required under Section 276 of the Indian Succession Act.
14. Although Section 276 of the Succession Act would requires the petitioner to state that the writing annexed is the last Will and testamount of the testator. It is not necessary that the exact words given in the statue be used to convey this.
15. From the reading of the petition, it is clear that the petitioner's assertion is that Smt. Ram Murti Devi filed a petition for probate of the Will executed by Shri Suraj Mal in her own favour and during the pendency of the same, she executed the Will in question on 20.12.09 whereafter she died on 25.02.2010. No objection in this regard has been raised at the beginning of the proceedings in the petition or any time during the trial. Infact from the evidence led on record, there is no indication from either side that Smt. Ram Murti Devi executed any other Will or testament. The objections raised by Ld. Counsel in this regard is therefore devoid of PC No: 42/10 5 Page 5/13 P.C. No. 42/10 Sh. Dharamvir Vs. The State merit and is of no consequence.
16. The requirement of the petition being attested by one of the attesting witness of the Will, as laid down in Section 281 CPC, has already been fulfilled by the petitioner since one of the attesting witness Umed Singh has filed an affidavit along with the petition. which is substantially in the form of verification required by Section 281 CPC. No exception can therefore be taken in this regard.
17. Ld. Counsel has further pointed out that in the affidavit of Umed Singh, he has mentioned that Smt. Ram Murti Devi put her signature on the Will while actual Will contains only her thumb mark. However, this is certainly a minor discrepancy, which, if the Will is otherwise proved during trial, does not in any way affect the right of the petitioner to seek probate or letters of administration.
18. Having dealt with the preliminary objections to the maintainability of the petition, I come to the formal issues settled in this case. My findings on the above issues are as under:-
19. ISSUE No. 1 - The requirements for a valid execution for an unprivileged will are laid down in Section 63 of the Indian Succession Act which is reproduced herein-
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 PC No: 42/10 6 Page 6/13 P.C. No. 42/10 Sh. Dharamvir Vs. The State 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 whom has seen the testator sign or affix his mark to the Will or has been 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 is shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
20. A will takes effect after the death of testator and therefore cannot be proved by its author. Since this is a document required by law to be attested, the proof of a will is governed by Sections 68 to 71 of the Indian Succession Act. As per Section 68, the Will can be proved by anyone of the attesting witnesses.
21. In the case on hand, the petitioner has examined PW1 Hem Raj to prove the Will executed by Shri Suraj Mal on 26.04.2004. Shri Hem Raj is the attesting witness of the said Will. He has deposed in his affidavit that on 26.04.04, Shri Suraj Mal had executed the said Will in favour of Smt. Ram Murti Devi in his presence and the same was registered in the office of Sub Registrar- II, West District Janakpuri, New Delhi. He has verified his signature on the Will which was exhibited as Ex.PW1/A. He has also deposed that Shri Suraj Mal was in sound health and mind on the relevant PC No: 42/10 7 Page 7/13 P.C. No. 42/10 Sh. Dharamvir Vs. The State date and made a Will of his sweet wish and will and without any coercion, undue pressure and fraud from any side. He was cross examined at length on behalf of objector. On being asked, he explained that he was called by Dr. Suraj Mal on the relevant date and was told that Dr. Suraj Mal was executing the Will in favour of his wife Smt. Ram Murti Devi. He stated that besides himself, another witness also signed the Will on that day but he did not remember his name. His statement has been further corroborated by PW4 Krishan Kumar who brought the record of the Will dated 26.04.04 executed by Shri Suraj Mal and registered vide registry no. 37225, Addl. Book no. 3, Vol. 7194 at pages 1 to 5.
22. In view of the above deposition, I find that the Will dated 26.04.04 has been duly proved, as required by Section 68 of Evidence Act. The evidence of attesting witness Hem Raj also proves that all the requirement of Section 63 of the Indian Succession Act were fullfiled at the time of registration of Will. Issue no. 1 is accordingly decided in favour of plaintiff.
23. ISSUE NO. 2 AND ISSUE NO. 3 - The Will dated 20.12.09 stated to have been executed by Smt. Ram Murti Devi in favour of petitioner Dharamvir is the actual subject matter of this petition. The Will is sought to be proved by the petitioner by deposition of two of the three attesting witnesses namely PW2 Ram Raj Sharma and PW3 Prashant Rajput. PW2 in his affidavit deposed that Smt. Ram Murti Devi executed the said Will on 20.12.09 in his presence and he signed the same in her presence as attesting witness. PW2 has proved the Will as Ex.PW2/A. He has also deposed that Smt. Ram Murti Devi was in sound position of health and mind and she bequeath with her sweet wish and will and without any PC No: 42/10 8 Page 8/13 P.C. No. 42/10 Sh. Dharamvir Vs. The State coercion, undue pressure or fraud from any side. PW3 Prashant Rajput identified his signature on the Will Ex.PW2/A and also thumb impression of Smt. Ram Murti Devi.
24. These witnesses also have been cross examined on behalf of objector. In the cross examination, PW3 Prashant Rajput clarified that Shri Surajmal was like a father of the petitioner Dharamvir. He has stated that he used to go to his house occasionally. He specified that the Will was prepared at the house of the testatrix although he did not remember the exact address. He clarified that Shri Ram Raj Sharma and Shri Umed Singh were also present apart from him when Smt. Ram Murti executed the Will. On a question being asked, he reiterated that Smt. Ram Murti Devi put her thumb impression on the Will in his presence and that the Will was read over to her by Umed Singh. He further reiterated that he was told by Smt. Ram Murti Devi that she had bequeathed the property in favour of the petitioner, Dharamvir.
25. The averment of PW2 in his affidavit that Smt. Ram Murti Devi was in sound disposing mind and health at the time of execution of the Will has also gone unrebutted since there is no cross examination of the witnesses on this point and no other evidence has been produced by the objector to indicate other Wills.
26. The above deposition of PW2 and PW3 clearly prove that the Will dated 20.12.09 was executed by Smt. Ram Murti Devi in sound condition of health and mind, fullfilling all the requirement of Section 63 of Succession Act and has been duly proved as per the requirement of Section 68 of Evidence Act. Issue No. 2 & 3 are decided accordingly.
27. ISSUE NO. 4 - The onus to prove this issue was on PC No: 42/10 9 Page 9/13 P.C. No. 42/10 Sh. Dharamvir Vs. The State the objector. In her affidavit of evidence, she has made an averment that the Will dated 20.12.09 is forged and fabricated but the reasons given for the same is that Shri Suraj Mal had already executed the Will dated 29.05.98 bequeathing the same property in her favour. She has deposed that Shri Suraj Mal used to treat her as her own daughter and that she has been living all through in the same property which was owned by Shri Suraj Mal and is also collecting rent from various tenants after the death of Shri Suraj Mal. She has raised an apprehension that the Will dated 24.06.94 has been got registered by the petitioner in collusion with the staff of the office of Sub Registrar. Apart from this, there is no serious averment of any specific instance or evidence that either of the wills in question have been fabricated. She has not disputed the signatures of either the testator or any attesting witness on either of the Wills.
28. As already mentioned above, no serious challenge has come out in the cross examination of attesting witness of the Will dated 20.12.09 namely Hem Ram who has deposed as PW1. In view of the above, the objector has failed to discharge the onus of proving any forgery or fabrication in either of the Wills i.e. the the Will dated 24.06.2004 executed by Shri Suraj Mal or Will dated 20.12.09 executed by Shri Ram Murti Devi. The issue no. 4 is also therefore decided against the objector.
29. ISSUE NO. 5 - The Will dated 29.05.98 stated to have been executed by Shri Suraj Mal in favour of objector Kirti Devi has been propounded by the objector. The Will has been proved by th evidence of RW3 Shri Rajan Mahajan, an attesting witness and RW2 Krishan Kumar who brought the original record of the registration of the Will from the office of Sub Registrar, Janakpuri.
PC No: 42/10 10 Page
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Sh. Dharamvir Vs. The State
There is no denial of the execution of the Will on behalf of the petitioner. Infact PW1 Shri Hem Raj who is the attesting witness of both the Wills executed by Suraj Mal, in his cross examination conducted on 16.10.12, has clearly admitted that he has attested both the Wills executed by Shri Suraj Mal. Accordingly, I hold that the Will dated 29.05.98b was duly executed by Shri Suraj Mal in favour of objector Kirti Devi.
30. However the Will dated 29.05.98 is admittedly prior to the Will dated 26.04.04 executed by Shri Suraj Mal in favour of Ram Murti Devi. Ld. Counsel for the objector has argued that the later Will dated 26.04.04 does not contain any recital of revocation or even any mention of previous Will dated 29.05.98. His argument is that a person cannot execute second Will without revoking any other Will.
31. The contention of Ld. Counsel for the petitioner on the other hand is that once the second Will is executed, the previous one automatically gets revoked.
32. Section 62 of the Indian Succession Act specifically mentions that any Will can be revoked or altered by its maker at any point when he is competent to dispose of his property. It is correct that Will of Suraj Mal dated 26.04.04 does not contain any recital of revocation but it is also correct that the said Will is a later Will by the same maker as compared to the Will propounded by the objector.
33. The matter involving two Wills by the same maker have been dealt with by the courts on various occasions. In a case Rajan Suri Vs. State reported as ( 2006) 86 DRJ 34, the Hon'ble High Court of Delhi has held that probate can be granted only of the last Will of the testator and not in respect of any previous Will .
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34. In K.V. Kohli through LRs Vs. State ( IA No.
9664/09) in testcas.20/1997, a similar question arose before the Hon'ble High Court. It was held in para 8 that "there can be no maker of doubt that the law is that it is the last Will and testament of a testator/testatrix which shall prevail over any earlier Will".
35. Ofcourse in the said case, the Hon'ble High Court held that if the later Will is not proved to be genuine, probate can be granted of the earlier Will.
36. In the case on hand, position is that both Wills of Shri Suraj Mal i.e. the Will dated 29.05.98 and 26.04.04 have been proved to be genuine. Therefore the canvat laid down by Hon'ble High Court in the above said judgment has no application and the general law that the last Will prevails over all earlier Will squarely applies. I accordingly hold that though the Will dated 29.05.98 executed by Suraj Mal in favour of Kirti Devi is proved to be genuine but it shall not have any effect on the petitioner's right to seek probate on the basis of Will of Smt. Ram Murti Devi on 20.12.2009.
37. Relief- Resultantly this petition is allowed. The petitioner is entitled to Probate / Letters of Administration in respect of the Will dated 20.12.2009 executed by Smt. Ram Murti Devi in his favour. However, since no executor has been appointed by the testator, letters of administration with Will annexed is permitted to be granted in favour of petitioner with regard to immovable property of deceased subject to his paying the requisite court fee and furnishing Administration cum surety bonds to the satisfaction of the court.
38. It is, however, clarified that nothing stated herein above shall, however, be construed as an expression of opinion in respect of title of the deceased over the property in question.
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39. Let the file be consigned to Record Room with liberty to petitioner to fulfill formalities by furnishing administration-cum-surety bonds and court fees for issuance of formal letters of administration.
Announced in the open Court on the 22nd day of December, 2012 (ALOK AGARWAL) ADDL. DISTRICT JUDGE DWARKA COURTS: NEW DELHI PC No: 42/10 13 Page