Delhi District Court
Parul Bunker vs State on 18 September, 2024
IN THE COURT OF SH. SHIV KUMAR
DISTRICT JUDGE -02,
WEST, DELHI.
P.C. No. 08/2017
CNR No. DLWT01-001368-2017
DLWT010013682017
1. Parul Bunker,
W/o Sh. Sudhir Thakur,
R/o 110, Paschim Vihar Extension,
Paschim Vihar,
Delhi-110063
...........Petitioner
Versus
1. State/NCT of Delhi
2. Sh. H.C. Bunker,
S/o Late Sh. Ganesh Narain
R/o 110, Paschim Vihar Extension,
Paschim Vihar, Delhi-110063
3. Ms Kanika Bunkar,
R/o Taramat Bhawan,
Near Central Bank of India,
Branch Kasumpati,
Shimla-171009
....Respondents
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 1/48
Date of institution of the case : 16.02.2017
Date on which reserved for judgment : 04.09.2024
Date of pronouncement of Judgment : : 18.09.2024
JUDGMENT:
1. This is a petition preferred under Section 276 of the Indian Succession Act 1925, for grant of Probate of Will dated 18.03.2009 purportedly executed by late Shashi Bunker.
CASE OF THE PETITIONER AS PER PETITION
2. It is averred in the petition by the petitioner that Late Smt. Shashi Bunker W/o Sh. H.C. Bunker (herein after referred to as 'the deceased') expired on 15.12.2016. It is further averred in the petition that the deceased died leaving behind his husband and two daughters. The details of the near relatives of deceased is mentioned as under:
i) Sh. H.C. Bunker Husband/Respondent no. 2 ii) Ms Parul Bunker Daughter/Petitioner iii) Ms Kanika Bunker Daughter/Respondent no. 3.
3. It is further averred in the petition that the deceased was the absolute owner of the following immovable and movable assets:
i) Built up property admeasuring 80 sq. Yds, bearing no. 110, Paschim Vihar Extension, Paschim Vihar, Delhi-110063
ii) Built up property admeasuring 150 sq. Yds. Bearing no. H-
61, Eden Garden, Raja Bash, Jaipur, Rajasthan.
iii) Saving Bank Account bearing no.10663775628, SBI, Branch
Jwala Heri, Paschim Vihar, Delhi
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 2/48
iv) Fixed Deposit Account bearing no.10591645882, SBI,
Branch Punjabi Bagh of Rs. 3,00,000/-.
v) Fixed Deposit Account bearing no. 351307894551, SBI,
Branch Jwala Heri of Rs. 8,00,000/-.
4. It is further averred in the petition that during her lifetime, the deceased had executed a Will dated 18.03.2009, duly attested by the witnesses, in her sound disposing mind. The said will was also duly registered with the office of Sub-Registar, West, Delhi. It is further averred in the petition that, as per the said Will, the deceased bequeathed a flat no. 110, Paschim Vihar Extension, New Delhi-110063 and all her house hold goods, jeweleries, Bank deposits and accounts and all such property which she shall acquire in future, in favour of the petitioner, who is her elder daughter. It is further averred in the petition that the deceased vide the above said Will has deprived her younger daughter Kanika from inheriting any of her movable and immovable properties.
5. It is further averred in the petition by the petitioner that the whereabouts of Ms Kanika Bunker is not known to her since 2009. It is further averred in the petition that Ms Kanika had left the family on 31.01.2009, at the time when the testatrix was alive. The petitioner thus prayed for grant of Probate in respect of the Will dated 18.03.2009, executed by late Smt. Shashi Bunker in her favour.
6. Notice of the petition was issued to the State and also the private respondents. Citation for general public was also published in the daily newspaper "Asian Age" edition dated15.03.2017.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 3/48
7. No objection has been filed by any person from general pubic despite publication of citation for general public.
8. Separate written statements/objections have been filed on behalf of respondent no. 2 & 3.
CASE OF RESPONDENT NO. 2 AS PER HIS WRITTEN OBJECTIONS
9. In the written statement, respondent no. 2, has taken the preliminary objection that the present petition under section 276 of the Indian Succession Act, 1825 is not maintainable as the petitioner has not been appointed as an Executor of the alleged Will. It is further contended by respondent no.2 that the petition fails to fulfull the requirements of the provisions of section 276 of the Indian Succession Act, 1825 and is liable to be dismissed summarily. It is further contended by respondent no. 2 that the petitioner has not specifided the value of properties in the petition as well as the coloums of description of properties have been are left blank and the petitioner also has not filed the valuation report in terms of the Court Fee Act. The necessary Court Fee has also not been paid in terms of the Court Fee Act.
10. It is further contended by respondent no. 2 that the value of the properties as per description of property " Annexure D" is more than Rs. Two crores and the jurisdiction lies with the Hon'ble Delhi High Court in this regard.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 4/48
11. It is further contended by respondent no.2 that petitioner has also not fulfilled the conditions contained in section 276(3) of the Indian Succession Act, 1825. It is further contended by resondent no. 2 that the present address stated by the petitoner, is false as she was married to Sudhir S/o Sh. Nand Lal Thakur on 31.05.2010 and since then she has been residing in her matrimonial home only till date. It is further contended that after the demise of the deceased, the petitoner, on 15.12.2016 tried to take forcible possession of the property no. 110, Paschim Vihar, New Delhi-110063 and also tried to stop respondent no. 2 from entering into the said premises on 30.12.2016. The respondent no. 2 has made a police complaint in this regard to Assistant Commissioner of Police, Punjabi Bagh, New Delhi.
12. On merit all the contents of the petition has been denied by respondent no.2. It is further submitted by respondent no. 2 that the present petiton is liable to be dismissed as the alleged Will has been procured by the petitioner, by causing undue influence, threat and coercion, upon the deceased. It is further contended that respondent no. 2 is also the victim of threat, undue influence and coercion, at the hands of the petitiioner, when he was made to sign the Will as one of the witness, as the alleged testatrix, had been subjected to cruelty, harassment, indue influence and coercion. It is further contended that during the period of January, 2009 onwards, the testatrix and the respondent no. 2 were under constant mental stres and not in sound disposing mind as their younger daugher was missing and her P.C. NO. 8/07 Parul Bunker Vs State & Ors. 5/48 whereabouts were not known.
13. It is further contended that the younger daughter of the alleged testatrix and the respondent no. 2 could not be located. It is further averred by respndent no. 2 that in fact younger daughter Ms Kanika Bunker did not complete her studies and wanted to marry a person to whom late Mrs Shashi Bunker and respondent no. 2 did not like and came to know that she had withdrawn a sum of Rs.4,45,000/- from the account of respondent no. 2 illegally and had promised to return the same on 06.03.2009, which she never returned. It is further averred that the deceased testatrix/Mrs. Shashi Bunker was completly shaken by these events and was not in sound disposing mind and taking advantage of the situation, the petitioner coerced late Mrs. Shashi Bunker to transfer all her assets to the petitioner and she put pressure by stating that she would also run away from home if the Will is not made in her favour. Heeding to the undue influence, threat and coercion coupled with the fact that the deceased was not in sound disposing mind, the present Will was made and the respondent no. 2 was also coerced and with the use of threat and undue influence, he was made to sign the alleged Will as a witness. In the deeds of the petitioner, her maternal uncle Mr. Madav Verma equally participated.
14. It is further contended that there are other suspicious circumstances surrounding execution of the Will in question. It is further contended that no reason has been assigned in the Will by the deceased for disinheriting respondent no. 2 from inheritance. The P.C. NO. 8/07 Parul Bunker Vs State & Ors. 6/48 respondent no. 2, in view of the above objections, prayed for dismisal of the present petition.
15. Petitioner filed rejoinder to the written statement of respondent no.2, whereby the petitioner denied all the objections taken by respondent no. 2 and further denied that the respondent no. 2 is the victim of any threat or undue influence or coercion, in the hand of the petitioner or he was made to sign the Will as one of the witness. It is submitted that respondent no. 2 had signed the Will in question, as one of the witness, on his free will and without any threat, coerction or undue influence.
CASE OF RESPONDENT NO. 3 AS PER HER WRITTEN STATEMENT
16. Respondent no. 3 has also filed written statement taking preliminary objections that in the year 2009, the deceased wanted the respondent no. 3 to get married and was trying to compel her to solemanize marriage with some third person. It is further averred by respondent no. 3 that at that time she had left her parental house with a view to establish herself in her life. In view of the consistent pressure and threat from the police etc., the respondent no. 3 filed a writ petiton inter-alia seeking her own protection in the peculiar facts of the case.
17. It is contended by respodent no. 3 that since the respondent no. 3 had left her parental home of her own sweet will, her mother ( the P.C. NO. 8/07 Parul Bunker Vs State & Ors. 7/48 deceased herein) became upset and in such a disposition of mind during this peirod, she lost her mental balance and was amenable to pressure and coercion by any party. It is further contended that in such a condition of mind, the mother of the petitioner was coerced by the petitioner and she executed the Will dated 18.03.2009. It is further contended that due to anger against respondent no. 3, as also the mental imbalance and as also due to the coercion and pressure exerted upon her by the petitoner, the mother of the petitioner and respondent no. 3, got the Will dated 18.3.2009 registered at the office of the Registrar.
18. It is further contended that respondent no. 3 again became to very close to her mother and she used to keep talking to her mother. It is further contended that in due course of time, the respondent no. 3 got married and gave birth to a child/daughter, pursuant thereto, the deceased was very happy and very attached to her child. It is further contended that on numerous occasions, she met the deceased alongwith her child and the deceased was very happy to see her happy and prosperous in life.
19. It is further contended that her mother/the deceased told to the respondent no. 3 that under pressure from the petitioner, she had got a Will registered in the name and in favour of the petitioner. It is further contended that on asking from her mother, she told that she was then upset with her and also not in a poper state of mind, while executing the Will and that she had been cocerced by the petitioner to execute such a P.C. NO. 8/07 Parul Bunker Vs State & Ors. 8/48 Will, taking advantage of the fact that at that time she was very upset with respondent no. 3.
20. It is further contended that upon further talks, her mother told to the respondent no. 3 and her husband that this was no longer her last wish or desire and she took out the original of the Will and destroyed it, in the presence of respondent no. 3 and her husband ( husband of the answering respondent) and also said that in the absence of the original Will, all her legal heirs would be governed by the normal procedure of death of a person, who has not executed any Will. It is further contended that in such a circumstances, the alleged Will did not give any right in favour of the petitioner. It is further contended that the original Will had not been placed on record by the petitioner because such original had been destroyed by the testatrix with the observation that the answering responddent herein would have a share in the property.
21. It is further contended that the answering respondent has rasons to believe that her deceased mother had made another Will and executed the same but since the petitioenr is in possession of the house, she has destroyed or concealed the Will subsequently executed by the mother of the answering respondent.
22. It is further contended that case is liable to be dismissed on the sole ground that the pleadings do not mention the basic requirement P.C. NO. 8/07 Parul Bunker Vs State & Ors. 9/48 as required in section 276 of Indian Succession Act, 1925.
23. On merit all the contents of the petition have been denied and it is prayed that present petition may kindly be dismiss with cost.
24. Petitioner also filed rejoinder to the written statement of respondent no. 3 and denied all the preliminary submissions/contents of the written statement of resondent no. 3 and it is specifically denied that due to anger against respondent no. 3, the mother of respondent o. 3 got the Will registered. It is further denied that the mother of the petitioner was mentally imbalance at any point of time or that the petitioner ever exerted any pressure upon her mother or ever coerced her mother. It is further denied that the mother of the petitioner was happy with respondent no. 3 or was attached to the child of respondent no. 3 or that she met respondent no. 3 alongwith with her child on any occasion.
25. It is further submitted by the petitioner that the original Will is with resondent no. 2 i.e. father of the petitoner, who also shown the same to the petitioner and her husband and refused to give the same to the petitioner and is not showing and producing the same with malafide intentions. It is further submitted by the petitioner that the registered Will dated 18.03.2009 is the last and final Will of the mother of the petitioner and she has not executed any other Will subsequently.
26. Vide order dated 28.08.2017, following issues were framed for adjudication:
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 10/48
1. Whether the Will dated 18.03.2009 executed by late Smt. Shashi Bunker W/o Sh. H.c. Bunker is her last genuine, legal, valid Will and duly executed in her 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 objector raised by the respondent/objector no. 2 in the written statement/objections? OPR
4. Whether the petition is liable to be dismissed for the objections raised by the resondent no. 3 in the written statement/objections? OPR
5. Relief.
EVIDENCE ON BEHALF OF PETITIONER
27. Petitioner has examined 4 witnesses in support of her petition. Petitioner entered in the witness box as PW 1. In her examination-in- chief by way of affidavit, she reiterated the contents of the petition. She relied on the following documents in support of her assertions -
1. Ex. PW1/1 - Death certificate of late Smt. Shashi Bunkar
2. Ex. PW1/2 ( OSR) - Copy of her election I card.
3. Ex. PW1/3 - Certified copy of Will.
PW-1 has been duly cross-examined by ld. Counsel for respondent no. 2 & respondent no. 3.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 11/48
28. Sh. Ravi Singh, Security & court duty office from the office of Sub-Registrar-II A, Punjabi Bagh, Delhi appeared as PW-2 and proved the registration of the Will dated 18.03.2009 vide registration no. 430, in book no. 3, Vol. 169 on page 173 to 175 as already Ex. PW-/13 and the copy of the Will brought by him is Ex. PW-2/1.
PW-2 has not been cross-examined by ld. Counsel for R-2 & R-3, therefore, the above said testimony of PW-2 is unchallenged and un-rebutted. Ld. Counsels for respondent no. 2 & respondent no. 3 have opted not to cross examine PW-2 despite giving them opportunity to cross-examine PW-2.
29. Sh. Himansu Verma appeared in the witness box as PW-3 and he is son of late Sh. Madhav Verma, who was one of the attesting witness to the Will dated 18.03.2009, executed by late Smt. Shashi Bunkar and he tendered his evidence by way of affidavit Ex. PW-3/A. PW-3, identified the signatures of his father, late Sh. Madav Verma, on the Will Ex. PW-1/3 at point A1. PW-3 also deposed in his further examination-in-chief that his father late Sh. Madhav Verma had filed affidavit in evidence attested on 28.08.2007 but his father expired before giving evidence. PW-3 identified signatures of his father on the affidavit Ex. PW-3/1 at points A & B.
30. Sh. Hemant Vats, Advocate appeared as PW-4 and deposed that he is a summoned witness and after seeing the certified copy of the Will dated 18.03.2009, exhibited as Ex. PW2/1, he deposed that it had been drafted and signed by him at point A. P.C. NO. 8/07 Parul Bunker Vs State & Ors. 12/48
31. Vide separate statement of Sh. Rajeev Kumar, ld. Counsel for the petitioner, evidence on behalf of petitioner stands closed on 18.11.2022.
EVIDENCE ON BEHALF OF RESPONDENT NO. 232. Respondent no. 2, husband of the deceased/testatrix appeared as R2W1 and tendered his affidavit in evidence Ex. R2W1/A. Respondent no. 2 has been cross-examined by ld. Counsel for the petitioner.
33. Vide separate statement of Sh. Anil Kathuria, ld. Counsel for R-2, evidence on behalf of respondent no. 2 stands closed on 08.05.2024.
EVIDENCE ON BEHALF OF RESPONDENT NO. 334. No evidence has been led on behalf of respondent no. 3 and vide separate statement of Shri Rohit Kumar, Advocate, ld. Proxy counsel for Mohd. Qamar Ali, the evidence on behalf of respondent no. 3 stands closed.
FINAL ARGUMENTS
35. I have heard the final arguments from both sides and have gone though the entire case file and the judgments filed on behalf of P.C. NO. 8/07 Parul Bunker Vs State & Ors. 13/48 respondent no. 2. I have carefully considered rival submissions made on behalf of both parties.
36. Ld. Counsel for respondent no. 2 has relied upon the following Judgments:
1. Civil Appeal No. 3351 of 2014 titled Meena Pradhan & Ors. Vs Kamla Pradhan & Anr. Decided on 21.09.2023 by the Hon'ble Supreme Court of India.
2. H. Venkatachala Iyengar Vs B.N/ thimmajamma & Others, 1959 AIR 443 on 13.11.1958.
3. Civil Appeal no. 4370 of 2010. titled Murthy & Ors. Vs C. Saradambal & Ors. decided on 10.12.2021.
4. B. Venkatamuni Vs C.J. Ayodhya Ram Singh & ors. appeal ( civil ) 4550 of 2006 decided on 19.10.2006.
5. Civil Appeal no. 1021-1026 decided on 17.07.2020 in V. Kalyanaswamy (D) by L.Rs and Ors. Vs L. Bakthavatsalam (D) by L.Rs and Ors.
STATUTORY PROVISIONS RELEVANT TO THE PRESENT CASE.
37. Before adjudicating the issues, I would like to discuss various statutory provisions relevant for deciding the present case.
38. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death".
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 14/48
39. Section 59 of Indian Succession Act, declares that every person ( not being a minor) "of sound mind" may dispose of his property by Will.
40. Section 61 of Indian Succession Act declares a Will as void and the section 61 reads as under:
Sec. 61. Will obtained by fraud, coercion or importunity- A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
41. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
Sec. "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 directions.
(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 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 the signature of such other person; and each of the witnesses shall sign the Will in the P.C. NO. 8/07 Parul Bunker Vs State & Ors. 15/48 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".
42. Section 276 of Indian Succession Act states as under;-
276. Petition for probate- (1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating-
a) the time of the testator's death
b) that the writing annexed in his last will and testament,
c) that it was duly executed,
d) the amount of assets which are likely to come to the
petitioner's hands, and
e) when the application is for probate, that the petitioner is the
executor named in the Will.
(2) In addition to these particulars, the petition shall further state-
(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property situate within the jurisdiction of the Judge, and
(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate;
(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is situate in another Sate, the petitioner shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 16/48
43. The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters.
"Section 68 of Indian Evidence Act states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of Indian Registration Act 1908 unless its execution by the person by whom it purported to have been executed is specifically denied.
ISSUE WISE FINDINGS
44. Finding on issue no. 1, 3 & 4.
1. Whether the Will dated 18.03.2009 executed by late Smt. Shashi Bunker W/o Sh. H.c. Bunker is her last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP
3. Whether the petition is liable to be dismissed for the objections raised by the objector raised by the respondent/objector no. 2 in the written statement/objections? OPR
4. Whether the petition is liable to be dismissed for the objections raised by the resondent no. 3 in the written statement/objections? OPR
45. Issues no. 1, 3 & 4 are taken together as they are interconnected and have mutual bearing, therefore, these issues are taken together. Onus to prove issue no. 1 is upon the petitioner and onus to prove issues no. 3 & 4 are upon the respondents.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 17/48
46. The principles for proving the Will have been well settled, in catena of judgments by Hon'ble Supreme Court of India as well as by Hon'ble Delhi High Court. Some of the judgments have been mentioned below to appreicate the law, applicable on the facts of the present case.
47. In a case titled as H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Hon'ble Apex Court has laid down the following propositions:
(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters.
As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be P.C. NO. 8/07 Parul Bunker Vs State & Ors. 18/48 discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such P.C. NO. 8/07 Parul Bunker Vs State & Ors. 19/48 pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
48. In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. In Civil Appeal No. 3351 of 2014, decided on 21 September 2023, the Hon'ble Apex Court has deduced the principles to prove the Will and the same are as under; -
i This court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a)The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will:
(b)It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:
(c)Each of the attesting witnesses must have 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 such signatures:(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not P.C. NO. 8/07 Parul Bunker Vs State & Ors. 20/48 required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence:
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 21/48 xi. Suspicious circumstances must be 'real' germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstances raising suspicion legitimate in nature would quality as a suspicious circumstances for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
49. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Hon'ble Supreme Court of India had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to its earlier decision of case titled H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors (Supra) the Hon'ble Supreme court has held as follows:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable P.C. NO. 8/07 Parul Bunker Vs State & Ors. 22/48 or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
( emphasis supplied)
50. In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199 (DB), the Hon'ble High Court of Delhi made reference to FAO No. 874/2003 dated 21.11.2007 titled Jagdish Lal Bhatia vs Madan Lal Bhatia which dealt with the legal burden of proof when a Will is propounded and also spelt as to what would constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last, legal and valid testament of the testator. These are as under:
I. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is last will of a free and capable testator.
II. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law. The contestant opposing the P.C. NO. 8/07 Parul Bunker Vs State & Ors. 23/48 will may bring material on record meeting such prima facie in which event the onus would shift 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. (see the decision of the Supreme Court in Madhukar D. Shende v Tarabai Aba Shedge, AIR 2002 SC 637).
III. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence.
IV. Expanding on the care and caution to be adopted by the courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw& Tr. 431 In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.
V. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. If a testator merely casts his eye over the will, this may not be sufficient.
VI. Courts have to evaluate evidence pertaining to the circumstances under which the will was prepared. If a will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the will, probate would not be granted unless that suspicion is removed.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 24/48 VII. A word of caution. Circumstances can only raise a suspicion if they are circumstance attending, or at least relevant to the preparation and execution of the will itself.
VIII. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. Instance of suspicious circumstances would be alleged signatures of testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable and unfair.
IX. Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the will.
X. A will is normally executed by a person where he intends to alter the rule of succession or where he desires a particular form of inheritance and to that extent, nature of bequest is not of much substance to invalidate a will, but consistent view taken by the courts is that this could be treated as a suspicious circumstance. What weightage has to be attached to this suspicion would depend upon case to case.
XI. Suspicion being a presumptive evidence, is a weak evidence and can be dispelled.
51. In a case titled Inder Bala Bose vs Maninder Chandra Bose A IR 1982 SC 133, the Hon'ble Supreme Court of India has held that "any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normal in a normal situation or is not expected from a normal person."
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 25/48
52. In a case titled Kavita Kanwar Vs Mrs Pamela Mehta decided on 19.05.2020 passed by Hon'ble Supreme Court of India has held as follows:
16. A Will is executed to alter the ordinary mode of succession and by bound to result in earlier reducing or depriving the share of natural heirs. If a person intends his the very nature of things it is property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance specially in a case where the bequest has been made in favour of an offspring. As held in P.P.Κ. Gopalan Nambiar v.
P.P.K. Balakrishnan Nambiar and Ors.: [1995] 2 SCR 585, it is the duty of the propunder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind.
53. In the light of Legal principles as carved out in catena of Judgments by the Hon'ble Superior Courts and some of them as discussed above, it is obligatory for the petitioner to prove the following essentials:
(i) That the Will in question is a legal declaration of the intention of the testatrix:
(ii) That the testatrix while executing the Will was in the sound and disposing state of mind:
(iii) That the testatrix had executed the Will of her own free will, meaning thereby that she was a free agent when she P.C. NO. 8/07 Parul Bunker Vs State & Ors. 26/48 executed the Will:
(iv) The petitioner has to prove that the Will in question is the last Will of the testatrix:
(v) The petitioner has also to remove all the suspicious circumstances, surrounding the execution of the Will:
(vi) For proving the Will, one attesting witness of the Will, atleast, if alive, must be examined in the Court as per section 68 of the Indian Evidence Act.
54. Ld. Counsel for the respondent no. 2 has contended that the present petition under section 276 of the Indian Succession Act, 1825 is not maintainable as the petitioner has not been appointed as an Executor in the alleged Will.
55. I have perused the Will Ex. PW-1/3. In the said Will the petitioner has not been appointed as an executor. However, the petitioner is the sole legatee in the said Will. I have perused the judgment titled Smt. Veena Khanna Vs State & Ors. 2024, DHC, 3469., the Hon'ble High Court of Delhi in the above said judgment has held as follows:
"113. Pertinently, the petitioner is only a legatee and not the executor of the Will dated 05.06.1979 Ex. PW1/2. Yet a prayer has been made for the grant of a Proabte instead of a Letter of Administration.
114. According to Section 222(1) of the Indian Succession Act, 1925 a probate shall be granted only to an executor appointed by the Will.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 27/48
115. The Madras High Court relying on Vatsala Srinivasan ( Supra), in Madhy vs Vairamanai, CRP No. 3381/2021 decided on 27.10.2022 observed that even though the legatee had prayed for Probate, considering that the proceedings for Probate and a Letter of Administration serve the same purpose of benefiting the legatee, the court can very well grant a Letter of Administration to the sole legatee, the court can very well grant a Letter of Administration to the sole legatee instead of a Probate, if he succeeds in proving the validity and the genuineness of the Will.
116. It is therefore, held that the present petition seeking for a Probate is hereby treated as a petition for Letter of Administration, for grant of which the petitioner is entitled."
In the light of the above said jugment and as per provision of section 276, letters of administration can be granted to the petitioner as she is sole legatee in the Will in question, therefore, the above said petition is treated for grant of letters of administration instead of Probate. In view of the above said observation, there is no merit in the above said contention of ld. Counsel for respondent no. 2 and the same stands rejected.
56. It is further contended on behalf of respondent no.2 & 3 that the petitioner fails to fulfull the requirements of the provisions of section 276 of the Indian Succession Act, 1825 and is liable to be dismissed summarily. It is further contended by respondent no. 2 that the petitioner has not specifided the value of properties in the petition as well as the coloums of description of properties have been left blank and the petitioner also has also not filed the valuation report in terms of the P.C. NO. 8/07 Parul Bunker Vs State & Ors. 28/48 Court Fee Act. The necessary Court Fee has also not been paid in terms of the Court Fee Act.
57. In a case titled Dra Mountford v. State Government of NCT of Delhi & Ors., 2018 SCC Online Del 8892, the Hon'ble High Court of Delhi has held as under:-
11. Section 278 of the Act deals with petition for letters of administration. This section lays down the requirements of a petition for letters of administration as contrasted with, and distinguished from, an application for probate or letters of administration with the Will annexed, dealt with in Section
276. In this section also Clause (d) provides that the application should contain a statement regarding the amount of assets which are likely to come to the petitioner's hands. From the statutory provisions- Section 276 and 278 of the Act, it is clear that there is no mandatory direction that the petitioner for letters of administration should contain the entire assets schedule in the Will. The sections also do not provide any provision for dismissal of the application for the reason that the entire assets shown in the Will are not scheduled in thepetition".
18. Considering the law cited above the question of valuation of assets and payment of the court fee shall arise only once the Will is held to be valid and the Court directs the grant of probate or letter of administration with Will annexed and the final valuation shall be done by the Collector of the area at that time.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 29/48
58. In view of the above said judgment, there is no force in the above said submission of respondent no. 2 & 3 as the issue regarding filing of valuation of the property in question as well as court fees will arise only after passing order regarding grant of letters of administration in favour of the petitioner. Hence, the above said contention stands rejected.
59. It is further contended on behalf of respondent no. 2 that the value of the properties as per description of property " Annexure D"
is more than Rs. Two crores and the jurisdiction lies with the Hon'ble Delhi High Court in this regard.
60. PW-1 deposed in his examination-in-chief on affidavit that the deceased had his fixed place of bode at the time of her death at Delhi and the testator had expired in Delhi and the property, subject matter of the present petition is situated within the jurisdiction of this Hon'ble Court and therefore, this Hon'ble court has the jurisdiction to entertain and decide the present petition.
61. As per section 270 of Indian Succession Act, this Court has jurisdiction to grant Probate of the Will or letters of administration of the estate of the deceased, if the deceased at the time of her death had a fixed place of abode or any of her property, movable or immovable situates within the jurisdiction of this court. Admittedly, the deceased had fixed place of abode, at the time of her death within the jurisdiction of this court and the property mentioned in the Will also situates within P.C. NO. 8/07 Parul Bunker Vs State & Ors. 30/48 the jurisdiction of this court. The jurisdiction of Probate Court is not subject to the value of the property of the deceased. In view of the above said facts, it is held that this court has jurisdiction to entertain the present petition.
62. It is further contended on behalf of respondent no. 2 that after the demise of the deceased, the petitoner, on 15.12.2016 tried to take forcible possession of the property no. 110, Paschim Vihar, New Delhi-110063 and also tried to stop respondent no. 2 from entering into the said premises on 30.12.2016. The respondent no. 2 has made a police complaint in this regard to Assistant Commissioner of Police, Punjabi Bagh, New Delhi.
63. It is settled law that being a probate court, this court has to decide only the validity and legality of the Will in question. The above said contentions regarding attempt of the petitioner to take forcible possession or trying to stop respondent no. 2 from entering the premises are beyond the jurisdiction of this court. In view of the above said observation, the above said contention of respondent no. 2 stands rejected.
64. It is argued by ld. Counsel for R-2 that the petitioner has failed to prove the Will in question as per Section 68 of Indian Evidence Act. He further argued that the Will in question does not fulfill the requirement of Section 63 of Indian Succession Act.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 31/48
65. PW-1 in her examination in chief by way of affidavit Ex. PW-1/A deposed that the deceased had duly executed her last will dated 18.03.2009, duly attested by the witnesses, in sound disposing mind. The said Will was also duly registered with the office of Sub-Registrar, west , Delhi. PW-1 further deposed that the deceased has not appointed any Executor of the Will. PW-1 further deposed that as per the said Will, the said testator late Smt. Shashi Bunker, bequeathed her entire property in favour of the petitioner, who is her elder daughter. PW-1 further deposed that the certified true copy of the said Will dated 18.03.2009 is already on record and is Ex. PW-1/3.
66. The Will in question reveals that it has been signed by two attesting witnesses namely Sh. Madhav Verma and Sh. H.C. Bunker. Sh. Madav Verma had filed his affidavit in evidence in the court but before tendering the said affidavit in evidence, he expired. Sh. H.C. Bunker, is respondent no. 2 and he is contesting the present petition.
67. PW-3/Sh. Himanshu Verma son of late Sh. Madhav Verma, ( who was one of the attesting witness) appeared in court and deposed in his examination in chief on affidavit as follow:
"1. That I am the son of late Madhav Verma, who is one of the attesting witness of the registered Will dated 18.03.2009 executed by late Smt. Shashi Bunker W/o Sh. H.C. Bunker and am well conversant with the facts of the present case and competent to swear the present affidavit.
2. That late Smt Shashi Bunkder, W/o Sh. H.C. Bunker was the real sister of my father. I have seen the certified copy of registered Will dated 18.03.2009 executed by late Smt. Shashi Bunder W/o Sh. H.C. Bunker which was duly registered at office of Sub-Registrar, West, P.C. NO. 8/07 Parul Bunker Vs State & Ors. 32/48 Delhi ( Ex. PW-1/3). I identify signature of my father late Madhav Verma on the said registered Will dated 18.03.2009 as I have seen my father writing and signing since my childhood. The signature of my father on said registered Will dated 18.03.2009 ( Ex. PW-1/3) may be marked as point "A-1".
3. That my father died during pendency of present petition. True copy of the death certificate of my father is annexed herewith and may be exhibited as Ex. PW-3/1. Prior to his death my father appeared before this Hon'ble court and also filed his evidence by way of affidavit in support of present petition. The said affidavit is already on record and may be exhibited as Ex.PW-3/2 and the same bears the signatures of my father at point "A-2" and "A-3".
68. In the cross-examination, PW-3 deposed that he had seen the original Will at the house of his aunt Smt. Shashi Bunkar. PW-3 further deposed that he had seen that Will in the presence of his uncle Dr. H.C. Bunkar. During the cross-examination of PW-3, respondent no. 2 & respondent no. 3 have never challenged that the signatures on the Will are not of Madhav or PW-3 wrongly identified his signatures on the Will. The above said testimony of PW-3 is unrebutted & unchallenged.
69. The Hon'ble Apex Court in a case titled Muddasani Venkata Narsaiah v. Muddasani Sarojana, AIR 2016 SC 2250 has observed as follows:
" 16. Moreover, there was no effective cross-examina- tion made on the plaintiff's witnesses with respect to factum of execution of sale deed, PW.1 and PW-2 have not been cross examined as to factum of execution of sale deed. The cross-examination is a matter of sub- stance not of procedure one is required to put one's own version in cross-examination of op ponent. The P.C. NO. 8/07 Parul Bunker Vs State & Ors. 33/48 effect of non cross-examination is that the statement of witness has not been disputed".
70. The Hon'ble Apex Court in a case titled as Arvind Singh v. State of Maharashtra, AIR 2020 SC 2451, 2021-11 SCC, has relied upon its earlier judgement given in a case titled as State Uttar Pradesh vs Nahar Singh (Dead) & Ors on 18 February, 1998 in which it is held that " in the absence of cross-examination on the explanation of delay, the evidence of PW-1 remained unchallenged and ought to have been believed by the High Court. Section 146 of the Evidence Act confers a valuable right of cross- examining the witness tendered in evidence by the opposite party. This Court held as under: -
"13. It may be noted here that that part of the statement of PW 1 was not cross-examined by the accused. In the absence of cross- examination on the explanation of delay, the evidence of PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138of the Evidence Act confers a valuable right of cross- examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:
.to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 34/48
71. In view of the above said facts and judgments, it is held that PW-3 has proved that the Will Ex. PW-1/3 bears the signatures of late Sh. Madav Verma at point A.
72. Sh. H.C. Bunker/R-2 who is second attesting witness of the Will in question, has appeared in the court as witness/R2W1 and has tendered his affidavit in evidence which is Ex. R2W1/A and in the said affidavit, respondent n. 2 deposed as under:
"1. I say that the present address stated by the petitioner is false. She was married to Sudhir S/o Sh. Nand Lal Thakur on 31.05.2010 and since then she is residing in her matrimonial home only till date. "7. I say that the alleged Will dated 18.03.2009 has been procured by the petitioner under undue influence, threat and coercion from my wife. The respondent no. 2 and my wife, the testator of the alleged Will, is also the victim of threat, undue influence and coercion at the hands of the petitioner when he was made to sign the same as one of the witness as the alleged Testator had been subjected to cruelty, harassment, undue influence and coercion.
"9 ....Heeding to the undue influence, threat and coercion coupled with the fact that late Mrs Shashi Bunker was not in sound disposing mind the present Will dated 18.03.2009 was made and the respondent no. 1 was also coerced and with the use of threat and undue influence made to sign the alleged Will dated 18.03.2009 as a witness".
73. In view of the testimonies of R2W1 as well as PW-3, It is proved that the Will Ex. PW-1/3 has been signed by late Sh. Madhav Verma and Sh. H.C. Bunker as attesting witnesses of the Will. From the P.C. NO. 8/07 Parul Bunker Vs State & Ors. 35/48 testimony of R2W1, it is also proved that the Will in question was executed by the deceased. The signatures of the deceased on the Will in question has not been disputed by respondent no. 2 & 3. As per section 68 of the Indian Evidence Act, examination of one attesting witness is mandatory for proving the Will. In the present case, one of the attesting witnesses, i.e. Sh. H.C. Bunker/R-2 has examined himself in the court and proved the execution of the Will by the deceased. It is held that requirement of Section 68 of Indian Evidence Act has been complied in this case.
74. It is further contended on behalf of respondent no. 2 & 3 that the present petiton is liable to be dismissed as the alleged Will has been procured by the petitioner, by causing undue influence, threat and coercion, upon the deceased. It is further contended that respondent no. 2 is also the victim of threat, undue influence and coercion, at the hands of the petitiioner, when he was made to sign the Will as one of the witness, as the alleged testator, had been subjected to cruelty, harassment, indue influence and coercion. It is further contended that during the period of January, 2009 onwards, the testator and the respondent no. 2 were under constant mental stress and were not in sound disposing mind as their younger daugher was missing and her whereabouts were not known.
75. No complaint was made by respondent no. 2 or by the deceased regarding putting the deceased and respondent no. 2 under influence, coercion or threats by the petitioner from 2009 till death of the testatrix on 15.12.2016.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 36/48
76. In the complaint made to ACP, Punjabi Bagh, respondent no. 2 requested the ACP, Punjabi Bagh to help him in entering his house bearing no. 110, Paschim Vihar Extn. New Delhi-63, as after the death of her wife, her daughter ( petitioner herein) and her husband put a new lock in the premises by which he cannot enter in the house, saying that this house belongs to her mother's name so as she said that you can not enter in the house without her presence, although this house is build by hard earned money of his and his wife Mrs. Shashi Bunker. Respondent no. 2 further prayed to ACP that look into the matter peacefully and disallow her daughter & her husband from his house so that without fear he can live in his house and save him to becomes the victim of her daughter, her husband and two other persons, who helping a lot I.e material uncle and aunt namely Sh. Madhav Verma & Mrs Raj Verma.
77. In the complaint made to P.M. office, respondent no. 2 made a complaint against the petitioner and her husband and reiterated the facts as mentioned above in the complaint to the ACP, Paschim Vihar, and further stated that her daughter Mrs. Parul wife of Sh. Sudhir got a fake will of his wife made claiming that his wife has devolved the premises in her name and accordingly she trespassed in to his house and has forcibly occupied in the full premises to illegally usurp the property. He further averred in the complaint that the will so claimed is fictitious and suspicious which itself amounts to a criminal offence and he is constantly under great distress and fear of being harmed by them. Respondent no. 2 requested the Hon'ble Prime Minister to please provide him security and protect him as his life is in great danger.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 37/48 In both complaints, the respondent no. 2 has never alleged that the petitioner threatened, or coerced or put undue influence upon the deceased or upon him for executing the Will in favour of the petitioner.
78. In the cross-examination R2W1 deposed that " my wife was retired on 30.08.2011. More than 30 years, my wife has done the job as principal. During the job, no complaint has been received regarding the mental stress/depression from the employers. She was mentally fit during the time of teaching/job. My wife executed the Will dated 18.03.2009 in favour of petitioner. My wife expired on 15.12.2016. I am not married again".
"Q. Were you mentally fit, when you doing job? Ans: I was mentally fit to do my job.
Q. Have you filed any document alongwith Written objection regarding you & your wife are not mentally fit?
Ans. No. Q. Is it correct that you are one of the witness of the Will? Ans: Yes"
79. The Will in question has been executed by late Smt. Shashi Bunker on 18.03.2009 and Smt. Shashi Bunker has died on 15.12.2016. Had late Smt. Shashi Bunker under coercion, threat or influence of the petitioner then she would have revoked the Will dated 18.03.2019, during her life time or would have made complaint against the petitioner regarding coercion, threat or putting her undue influence for executing the Will in question. Smt. Shashi Bunker has lived for about more than 7 years after execution of the above said Will but the said Will has not P.C. NO. 8/07 Parul Bunker Vs State & Ors. 38/48 cancelled by her. It is unbelievable that she remained under coercion, threat or undue influence of petitioner for more than 7 years, after executing the Will in question.
80. The deceased was an educated lady and was a principal and used to go to job and had done the job for more than 30 years and retired on 30.08.2011. It has also come on record that during her job, the employer of the deceased never made any complaint regarding mental stress/depression of the deceased. As per cross-examination of respondent no. 2, the deceased was mentally fit during the time of teaching/job. The respondents have not led any evidence to prove that the deceased was not in disposing state of mind and under coercion, threat or undue influence of the petitioner at the time of execution of Will. There is mere bald assertion of respondents which cannot be believed without having any evidence in this regard. In view of the above said testimony, it is held that deceased was of sound mind at the time of execution of the Will and the respondents have failed to prove that she was not in disposing state of mind at the time of execution of the Will.
81. During cross-examination, the Petitioner/PW-1 deposed that she did not accompany her mother to the office of Sub-Registrar for registration of the Will and her mother disclosed her about the Will when the deceased was in the hospital in November, 2016. On specific question of ld. Counsel for respondent no. 2, PW-1 deposed that the fact of registration of the Will came to her notice, when her father had shown her the Will, after the death of her mother and she took a picture of the P.C. NO. 8/07 Parul Bunker Vs State & Ors. 39/48 said Will in her mobile. The above said testimony has not been denied by ld. Counsel for respondent no. 2 & 3. The testimony of PW-1 on the above said facts is unrebutted and unchallenged. From the above said testimony, it is proved that the petitioner came to know about the Will only in November, 2016 and has not played any role in the preparation and registration of the Will in question. Therefore, it is held that respondents have failed to prove that the deceased was under undue influence, coercion or threat of the petitioner at the time of execution of the Will.
82. The deceased has given reasons for excluding respondent no. 3 from her inheritance in the Will in question and these reasons are genuine reasons and also proved to be existed at the time of execution of Will in question.
83. PW-1 further stated that the respondent no. 3 i.e. Ms Kanika Bunker left the family on 31.01.2009 and at that time the testator was alive. PW-1 further deposed in her examination-in-chief on affidavit that the testatrix has disowned Ms Kanika Bunker from her life and property.
84. During cross-examination PW-1 deposed as follows:
It is correct that in the January, 2009, Kanika ran away from the house. It is correct that her parents had lodged a criminal complaint about her running from the house. It is correct that Kanika is not in her touch since January, 2009. To some extent, it is correct that her parents were disturbed due to the fraud case against Kanika including police P.C. NO. 8/07 Parul Bunker Vs State & Ors. 40/48 case. It is correct that at the time of fraud case, her pareents had doubt that Kanika might forged their signatures for property or any other documents. She further deposed that she has no knowleedge about the writ petiton filed by Kanika against any person. However, later on her parents told her about it. She further deposed that they were disturbed because Kanika ran from house. The above said facts have not been disputed by the respondents. In the Will, the deceased has given the above said reasons for excluding the respondent no. 3 from her inheritance. Though no reason has been given in the Will by the deceased for excluding respondent no. 2 from her inheritance but it is settled law that Will is generally executed in order to disturb the line of inheritance. It is the sweet will of the deceased to give her property to any person. Merely, by the reason that any legal heir has been excluded from inheritance, the Will cannot be considered as doubtful and on thhis sole ground, the Will cannot be declared as null and void.
85. Respondent no. 3 has contended that the deceased had destroyed the original will, during her life time and had executed another Will which is either destroyed or concealed by the petitioner.
86. In response to a specific question, that how do you know about the registration of the Will, PW-1 answered that, ' when his father had shown her the Will after the death of her mother, she had taken a picture in her mobile and came to know that it was registered.'
87. As per petitioner, the original Will is with her father/R-2. PW-1 deposed that her mother never executed any other Will between P.C. NO. 8/07 Parul Bunker Vs State & Ors. 41/48 2009 to 2016 till her death.
88. The respondents have not challenged the testimony of PW- 1, regarding possession of the original Will with respondent no. 2. The respondent no. 2 has not alleged that the deceased during her life time had destroyed the original Will in question. Respondent no. 3 has taken the objection in the petition regarding destruction of original Will by the deceased but respondent no. 3 has not appeared in witness box to depose the above said fact. No evidence has been led by respondents to prove that the original Will was destroyed by the deceased during her life time. No cross-examination of the petitioner/PW-1 on this point, has been done by the respondents and no suggestion has been given to PW-1 that the deceased had destroyed the original Will. In view of the above said testimony, it is held that the respondents have failed to prove that the original Will was destroyed by the petitioner. Moreover, in view of the above said testimony, it is proved that the original Will is with respondent no. 2. Respondent no. 3 has also failed to prove that the deceased had executed another Will, during her lifetime.
89. Respondent no. 3 has not stepped into witness box to prove the allegations made by her by way of objections. The adverse inference is drawn against respondent no. 3 as she has not stepped into witness box for proving her objections without any just ground. There is mere bald assertions of the respondent no. 3 regarding challenging the Will in question but without evidence those objections cannot presume to be correct. Hence, the objections taken by respondent no. 3 has not been proved.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 42/48
90. The Will in question is a registered Will. Hon'ble High Court of Delhi in a case titled Smt. Veena Khanna Vs State & Anr. (Supra) has held as follows:
"61. The Will dated 05.06.1979 Ex. PW1/2 was duly registered by the office of the Sub-Registrar-District I-Delhi on 05.06.1979. The facum of registration of the Will in the present case creates a presumption that a registered document is validly executedas held in the case of Prem Singh & Ors. Vs Birbal & Ors., 2006 (5)) SCC 253. However, in the case of Rani Purnima Debi and Anr. Vs Kumar Khagendra Narayan Deb and Anr., AIR 1962 SC 567, the Apex Court observed that mere registration in itself is not sufficient to dispel all suspicion which exist without submitting the evidence to a close examination, though the factum of registration is an important circumstances in favour of the Will being genuine if cogent evidence is led in this regard to its registration".
In the present case, Will in question is a registered Will. Hence, in view of the above said judgment, the fact of registration of Will is also an important circumstances regarding genuineness of the Will in question.
91. Therefore, in view of my foregoing discussion, I hold that Will Ex. PW1/3 is a legal, valid, genuine and last Will of the deceased and has been duly executed by the deceased in sound disposing mind. The Will in question fulfills the requirements of section 63 of Indian Succession Act. Hence, issue no. 1, 3 & 4 are decided in favour of petitioner and against respondent no. 2 & 3.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 43/48 FINDINGS ON ISSUE NO. 2
2. Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will , as claimed? OPP
92. Section 273 of the Indian Succession Act talks about the binding effect of Probate/ letter of administration issued by the Hon'ble High Court and District Judge and the said section is reproduced as under :
"273. Conclusiveness of probate or letters of administration.- Probate or letters of administration shall have effect over all the property and estate, movable or immovable, of late deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted :
Provided that probates and letters of administration grants-
(a) by a High Court, or
(b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge and such Judge certifies that the value of the property and estate affected beyond the limits of the State does not exceed ten thousand rupees, shall, unless otherwise directed by the grant, have like effect throughout (the other States)....."
93. In a case titled Smt. Kanta Vs State and Another, 1985 SCC, Online Del 160:ILR (1985) 2 Del 89, the Hon'ble High Court of Delhi has held as under:-
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 44/48 (18) But I do not agree with the learned counsel for the objector. In my opinion the interpretation he has put forth is wrong. The limit of Rs. 10,000.00 as to the value of the property situated in another State is only with respect to the court of District Judge while the jurisdiction of the High Court is unlimited. It is apparent from a plain reading that the main body of the section makes the probate or letters of administration issued by the High Court of District Judge binding and conclusive throughout the State in which the High Court or the District Judge is working. The proviso to section 273 of the Act provides binding force of the probate or letters of administration with respect to any property which is situated even in another State. But that proviso places a limit of value of Rs. 10,000 in respect of binding force of the probate or letters of administration issued by the District Judge while no such limit has been placed as far as High Court is concerned. The words limiting Jurisdiction are only with the word. District Judge" and not with the High Court. As far as High Court is concerned, there are words reading, "shall unless otherwise directed by the grant, have like effect throughout the other States". As far as the High Court is concerned, the proviso reads as under:
"PROVIDED that probates and letters of administration granted-(a) by a High Court shall, unless otherwise directed by the grant, have like effect throughout the other States".
94. The Hon'ble High Court of Delhi in case titled Naval Mahajan Vs Neha Arora in case bearing no. 45/2009 has held that:
7. It would thus be seen that the Letter of Administration, if granted by this Court, would have effect in other States as well though if granted by the District Judge, it would have effect in others States only if the deceased, at the time of his death had a fixed residence in Delhi and it was certified by him that the value of the property and the estate beyond his limits did not exceed ten thousand rupees.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 45/48
95. The Supreme Court of India in a Transfer Petition ( Civil) No. 970 of 2016, titled as Ravinder Nath Aggarwal vs Yogender Nath Aggarwal & Ors. decided on 21 February, 2021, it has been held that;
"48. In So far as the second transfer petition is concerned, the relief sought therein is to transfer the testamentary case pending in the High Court of Uttrakhand to the District Court, Saket, Delhi. Since the Will set up by the petitioner covers properties located both in Nainital and Delhi, both these courts have concurrent jurisdiction. But in view of Proviso (b) to Section 273, letters of administration granted by a District Court cannot have validity in respect of a property located outside the State, if its value exceeds Rs. 10,000/-".
96. In the present case the petitioner is also seeking letters of administration in respect of property situated in Jaipur, Rajasthan. Though in the Will, the deceased has not mentioned about the property of Jaipur, Rajasthan. The petitioner has not led any evidence to prove that the deceased was owner of property situated in Jaipur, Rajasthan. The petitioner has not mentioned any averment as to on what date and by way of what document, the said property was purchased by the deceased. In the Will, the deceased has mentioned that she has bequeathed her all properties alongwith the properties which she may acquire in future to the petitioner. The petitioner has not filed the valuation of the above said property. However, as per observation of this court, prima facie the value of the property situated in Jaipur, Rajasthan will be more than Rs.10,000/-. As per proviso of section 273 and in the light of above said judgments, it is settled position that if the property having value more than Rs. 10,000/- situated beyond State Delhi, then the letters of administration issued by a District Judge of P.C. NO. 8/07 Parul Bunker Vs State & Ors. 46/48 Delhi, in respect of the said property shall not have binding effect beyond State Delhi. As per above said discussion, if this court issues a letters of administration in respect of the property in question then that letters of administration shall not have binding effect in State, Rajasthan.
97. Issue no. 1, 3 & 4 have already been decided in favour of the petitioner and against the respondent no. 2 & 3. It has already held above that the Will Ex. PW-1/3 is a legal, valid, genuine and last Will of the deceased. Since the petitioner has not been appointed as executor in the said Will, she is not entitled for Probate of the Will, as per Section 222 of Indian Succession Act. However, the petitioner is the sole legality in the Will in question, therefore, she is entitled for issuance of letters of administration in respect of the properties bequeathed to the petitioner by way of the Will in question. Hence, issue no. 2 is decided in favour of petitioner and against respondent no. 2 & 3.
RELIEF
98. In view of above discussion and findings, the present petition is allowed and Letters of administration in respect of properties mentioned in para no. 6 of amended petition except the property situated in Jaipur, Rajasthan be issued to the petitioner with copy of the Will annexed, under the seal of this court in the form set forth in schedule VII of the Indian Succession Act, subject to completion of following formalities such as:
(i) furnishing of requisite court fees on the value of the P.C. NO. 8/07 Parul Bunker Vs State & Ors. 47/48 movable and immovable property of the testatrix, coming into the hands of the petitioner as per Will dated 18.03.2009. The valuation of immovable property bearing no. 110, area measuring 70 sq. Mtrs, Paschim Vihar Extn. Paschim Vihar, New Delhi has already been filed as Rs. 67,40,146/-. So, there is no need to file valuation of the above said immovable property.
(ii) and further subject to furnishing of valuation of the movable properties of the testatrix, coming into the hands of the petitioner as per Will dated 18.03.2009.
(iii) and further subject to furnishing of administration-cum-
surety bond to the amount of the value of movable and immovable property of the testatrix, coming into the hands of the petitioner as per Will dated 18.03.2009.
(iv) Further, the petitioner is directed to file the inventory of movable and immovable properties within six months and final statement of account within one year from the date of receipt of letters of administration. The formalities of issuance of letters of administration, be completed within six months from the date of the judgment as per Section 290 & 291 read with Section 317 of Indian Succession Act.
File be consigned to record room after making all the necessary compliance and due formalities.
Announced in the open court (Shiv Kumar )
On 18th September, 2024 District Judge-02
(West), Room no. 127
Tis Hazari Courts
Delhi.
P.C. NO. 8/07 Parul Bunker Vs State & Ors. 48/48
SHIV Digitally signed by
SHIV KUMAR
KUMAR Date: 2024.09.18
16:47:22 +0530