Delhi District Court
District Judge vs State Through Collector on 19 January, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 89/10/08
New P.C. No. 16012/16
1 Shri Sanjeev Suri
S/o late Sh. S.S. Suri
R/o A-88, Brotherhood
Apartments, H-Block,
Vikas Puri,
New Delhi-110018
..........Petitioner
Versus
1. State through Collector,
New Delhi
2. Mr. Rajeev Suri
S/o Late Sh. S.S. Suri
R/o C-6B, Mayapuri,
MIG Flats, New Delhi-110018
3. Smt. Leela Puri
W/o late Sh. R.L Puri
R/o D-6, Green Park Extn.
New Delhi
4. Smt. Swaroop Lata Kumar
W/o Sh. Munish Kumar,
R/o House No. 13, Hanman Road,
Connaught Place, New Delhi
5. Smt. Sneh Lata Mehra
W/o Sh. Tilak Raj Mehra,
R/o Flat No. 8, Ground floor,
Block-C, Kalkaji, New Delhi
6. Smt. Promila Suri
D/o late Sh. K.G. Suri
R/o C-61, Kirti Nagar,
New Delhi
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 1/48
7. Mr. Sushil Puri
S/o late Sh. R.L. Puri,
R/o D-6, Green Park Exten.
New Delhi-16
8. Mr. Sunil Kumar
S/o Sh. Swaroop Lata Kumar,
R/o H.No. 13, Hanuman Road,
Connaught Place, New Delhi
9. Mr. Anil Kumar
S/o Sh. Swaroop Lata Kumar,
R/o H. No. 13, Hanuman Road,
Connaught Place, New Delhi
10. Mr. Rakesh Kumar
S/o Sh. Swaroop Lata Kumar
R/o H. No. 13, Hanuman Road,
Connaught Place, New Delhi
11. Smt. Sujata Gupta
D/o late Sh. Satyapal Suri
R/o Flat No. 6, Sandesh Bandra,
Mumbai-50
12. Ms Sunaina Suri
D/o late Sh. Satyapal Suri
R/o Flat No. 6, Sandesh,
Bandra, Mumbai-50
13 Smt. Veena Khanna
D/o Mrs Leela Puri
R/o D-6, Green Park Extn.
New Delhi
14 Mrs Neena
D/o Mrs Leela Puri
R/o D-6, Green Park Extn.
New Delhi
15 Mrs Neeru
D/o Mrs Leela Puri
R/o D-6. Green Park Extn.
New Delhi
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 2/48
16 Sudha
D/o Smt. Sneh Lata Mehra
R/o Flat No. 8,
Ground floor, Block-C
Kalkaji, New Delhi
17 Mrs Ritu
D/o Smt. Sneh Lata Mehra
R/o Flat No. 8, Ground floor,
Block-C, Kalkaji, New Delhi
18 Smt. Sarla Suri
R/o A-88, Brotherhood
Apartments, H- Block,
Vikaspuri, New Delhi
19 Smt. Savita Suri
W/o Late Sh. Satyapal Suri
R/o Flat No. 6, Sandesh,
Bandra, Mumbai-50
......Respondents
Date of institution of the case : 29.05.2008
Date reserved for judgment on : 09.01.2018
Date of pronouncement of judgment: 19.01.2018
JUDGMENT:
1 A petition under Section 276 & 278 of Indian Succession Act, 1925 for grant of Letter of Administration with the Will annexed dated 25th Day of April, 1996 of deceased Sh. Brij Lal Suri Son of late K.G. Suri has been filed and later on amended and confined the present petition to the property situated within the jurisdiction of court in Delhi.
2 In brief the facts are that the registered Will/writing hereinwith is the last Will and testament of Shri Brij Lal Suri S/o late K.G. Suri (hereinafter referred to as "deceased") who at the PC No. 89/10/08 Sanjeev Suri Vs State & Ors 3/48 time of his death on 12.05.2006, was residing at C-61, Kirti Nagar, New Delhi. The deceased was in possession of various movable and immovable properties, more particularly, as prescribed in Schedule-A annexed herewith.
3 It is stated that deceased was Hindu by religion and did not marry during his life time and as such has not left any Class I, legal heirs as defined in Hindu Succession Act. It is stated that as per the last Will of deceased, the entire properties mentioned therein being immovable property/situated at Simla being flat No. 3, First floor, R.K. Apartments, Fingask Estate, Near Kali Bari, Simla and half share in property bearing No. C-61, Kirti Nagar, New Delhi came to be devolved upon the petitioners and respondent no. 2.
4 It stated that since the relation of the petitioner and other relatives are not cordial, the petitioner is unable to give details of Class-II-heir. It is stated that the petitioner has come to know about the Will some time only on or around March/April 2007 when one of the witnesses to the said Will dated 25 th April. 1996, Sh. Sudhir Abrol, had witnesses the said Will. Thereafter, the petitioner, duly conducted a search at the office of Sub- Registrar of Janakpuri at New Delhi and obtained a duly certified copy of the said Will dated 25.04.1996, executed by the deceased. Petitioner seeks Probate/letter of administration to the will dated 25.04.1996 in his favour with regard to property bearing No. C-61, Kirti Nagar, New Delhi.
5 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector PC No. 89/10/08 Sanjeev Suri Vs State & Ors 4/48 and citation to general public got published in daily newspaper "Hindustan Times" dated 09.06.2008 ".
6 The valuation report in respect of immovable property was called from the concerned SDM/Collectors, accordingly Tehsildar, Rajouri Garden, New Delhi filed valuation report in respect of property bearing No. C-61, Kirti Nagar, New Delhi-15 and assessed the value of the same as Rs. 5,80,42,062/-
7 In this case as per record respondent no. 2 Sh. Rajeev Suri filed NOC in favour of the petitioner. Except respondent no. 6 & 11 other remaining respondents neither appeared nor filed any written statement/objection despite service through publication.
8 Respondent no. 6 Ms Promilla Suri D/o late Krishan Gopal Suri filed objection and it is stated that the alleged Will dated 25.04.1996 was never executed by late Shri Brij Lal Suri at any point of time in favour of the petitioner. The alleged Will dated 25.04.1996 is false, frivolous, fabricated, manipulated by the petitioner in order to usurp the right, title and interest of the answering objector. The petitioner and the so called witness of alleged forged Will have rendered themselves liable to be prosecuted for which the answering respondent is contemplating to sue them in criminal court of law.
9 It is stated that Mr. Brij Lal Suri was the real brother of the answering objector. He did not marry himself during his life time and thus had no issue of his own. The property bearing No. C-61, Kirti Nagar, New Delhi was owned by late Shri Krishan PC No. 89/10/08 Sanjeev Suri Vs State & Ors 5/48 Gopal Suri who executed a Will dated 20.06.1979 bequeathing his movable and immovable properties to different person. Shri Krishan Gopal Suri bequeathed property no. C-61, Kirti Nagar, New Delhi to his two sons i.e. Shri Brij Lal Suri and Satya Pal Suri in equal shares. The said Shri Krishan Gopal Suri son of late Shri Girdhari Lal Suri died at New Delhi on 14.06.1980 and the Will made by him came into force.
10 It is stated that subsequently disputes and difference arose amongst the legal heirs of late Krishan Gopal Suri which had resulted into filing of a suit bearing No. 322/03/88 for partition by Shri Brij Lal Suri against Shri Satya Pal Suri and others in the Hon'ble High Court which was subsequently transferred to ld. District Judge, Delhi. In the said suit the answering objector was impleaded as defendant no. 7 and petitioner his mother and brothers were also parties to the said suit.
11 It is stated that during the pendency of the suit, the plaintiff Shri Brij Lal Suri entered into a compromise with his real sister i.e the answering respondent by moving an application under order 23 Rule 1 read with Section 151 CPC. By way of the said settlement/compromise arrived between the Shri Brij Lal Suri and answering respondent and Brij Lal Suri agreed to divided his 1/2th share between himself and his sister Ms Promila Suri.
12 It is stated that Sh. Brij Lal besides the above said settlement he had also made a Will dated 28.01.1997 by which he had provided that on his demise, his share in the property No. C-61, Kirti Nagar, shall stand bequeathed to his sister Ms Promila PC No. 89/10/08 Sanjeev Suri Vs State & Ors 6/48 Suri. Since the petitioner and his family members were parties to the said suit as such they were well aware of the said compromise arrived at between Shri Brij Lal Suri and Ms Promila Suri. But they did not raise any objection to the said compromise/settlement arrived at between Shri Brij Lal Suri and Ms Promila at any point of time. Thus half share held by late Shri Brij Lal Suri in property No. C-61, Kirti Nagar, New Delhi stood devolved upon the answering respondent absolutely to the exclusion of all others.
13 It is stated that the petitioners and his family members who were parties to the said suit never uttered even a single word about the execution of prior alleged Will dated 25.04.1996 to the court of Ld. Addl. District Judge, Delhi where the proceedings were pending for disposal. It seems that the petitioners has forged, fabricated and manipulated the alleged Will dated 25.04.1996 subsequently after arrival of the compromise between the said Brij Lal Suri and Ms Promila Suri. The petitioner is guilty of committing of offence of forgery, fraud, manipulation, perjury as well as false deposition for which the respondent reserve her right to initiate criminal proceedings against him in the competent court of law as well as before the police authorities.
14 It is stated that alleged Will dated 25.04.1996 is forged and fabricated as Brij Lal Suri was not the absolute owner of the said property but the said property no. C-61, Kirti Nagar devolved upon him and his brother Satya Pal Suri in equal shares. In the petition the petitioner has mentioned that he is unable to give the details of Class-II heirs of the decease but he knew very PC No. 89/10/08 Sanjeev Suri Vs State & Ors 7/48 well that the answering respondent is the real sister of the deceased Brij Lal Suri in whose favour he had made his Will and Testament and also entered into a compromise.
15 It is stated that present petition has been filed by the petitioner in collusion and connivance of the respondent no. 2 who is none else than the real brother of the petitioner in order to play fraud upon the Hon'ble court. The respondent is in use and possession of the property No. C-61, Kirti Nagar, New Delhi since beginning in the capacity of owner thereof but the petitioner did not bother to implead her in the petition and she was impleaded subsequently when the malafide conduct of the petitioner was exposed.
16 It is stated that malafide of the petitioner is further apparent from the fact that he claims that he alleged Will was executed by Shri Brij Lal Suri in the year 1996 and the factum thereof was revealed to him on or around March/April, 2007 from the alleged witness of the Will Shri Sudhir Abrol. It has not been disclosed by the petitioner as to why the said witness kept the factum of execution of alleged Will as a secret for more than 11 years. The manipulation of the petitioner is further apparent that while drafting the petition he left the space as blank for deriving the knowledge of the alleged Will and the same has been filled/written by handwriting.
17 It is stated that malafide of the petitioner are further apparent from the fact that he has stated in the petition that he claims that deceased had alleged executed his Will in his favour but on the other hand the said deceased Brij Lal Suri had filed a PC No. 89/10/08 Sanjeev Suri Vs State & Ors 8/48 suit during his life time against the petitioner and his other family members which fact itself show that the relations between Shri Brij Lal Suri and his brother Satya Pal and his family members were never cordial and the question of executing the alleged Will dated 25.04.1996 in favour of the petitioner did not arise at all.
18 It is stated that Shri Krishan Gopal Suri was the absolute owner of his immovable and movable properties and made his last Will and Testament dated 29.06.1979. It is stated that from the bare perusal of alleged Will dated 25.04.1996 it give an impression that it is a part and parcel of the sale documents and not a family Will.
19 It is stated that with regard to the property at Simla it is submitted that the same was jointly owned by the answering respondent with her brother Brij Lal Suri and after his death the answering respondent has become its absolute owner to the exclusion of all others. Respondent no. 6 seeks dismissal of the present petition with exemplary costs and a complaint to the competent court of Ld. M.M. Delhi may be sent for the prosecution of the petitioner as well as the witness of so called forged Will.
20 Petitioner filed replication to the objections filed by respondents no. 6 and denied all the objections and reiterated the averments mentioned in the petition. It is stated that there was no compromise as being stated by the respondent no. 6. It was a fraud which was played upon by the respondent no. 6 with active connivance of Mr. Sudesh Chander, who had no authority to make any statement on behalf of late Shri Brij Lal Suri but PC No. 89/10/08 Sanjeev Suri Vs State & Ors 9/48 despite that he made the statement at the back of all the concerned parties.
21 It is stated that the alleged Will dated 28.01.1997 so far has not been produced by the respondent no. 6 and no compromise decree was produced by her and no compromise decree was passed on the basis of the said application filed under Order 23 Rule 3 CPC, hence there is no occasion to believe the version of respondent no. 6. It is denied that petitioner and his family members were well aware of the alleged compromise arrived between late Shri Brij Lal Suri and respondent no. 6 and alleged Will dated 28.01.1997.
22 It is stated that deceased had become the owner of his hare of the property in question by virtue of the Will executed by his father. The deceased had no issue therefore Class II legal heirs were not impleaded initially but later on all Class II Legal heirs were impeladed as a party and the petitioner has taken all the legal steps to serve them, hence the approach of the petitioner is bonafide and honest through-out. Petitioner further denied all the objections taken by respondent no. 6 and seeks dismissal of the objections filed by respondent no. 6.
23 Respondent no. 11 Ms Sujata Gupta, filed written statement and taken preliminary objections that no Will, as per the knowledge of the answering respondent was ever executed by Sh. Brij Lal Suri in fvour of any body.
24 It is stated that petitioner has concealed material facts from the court. The deceased Sh. Brij lal Suri had filed a PC No. 89/10/08 Sanjeev Suri Vs State & Ors 10/48 suit for partition of the property bearing no. C-61, Kirti Nagar, New Delhi being suit No. 1254/88 ( later renumbered as S- 392/06/88) on the strength of a Will dated 20.06.1974 executed by Shri Krishan Gopal Suri who was the father of Sh. Brij Lal Suri and late Shri Satya Pal Suri. Shri Satya Pal Suri was the husband of respondent no. 19 and father of answering respondent and of respondent no. 12. Late Shri Krishan Gopal Suri had bequeathed the property bearing No. C-61, Kirti Ngar, New Delhi in equal proportion to late Shri Brij Lal Suri and father of the answering respondent late Sh. Satya Pal Suri. The said suit was pending till 2006 and was ultimately abated on 22.08.2006 as the plaintiff Sh. Brij Lal Suri died.
25 It is stated that no Will as per the knowledge of the answering respondent was ever executed by Shri Brij lal Suri in favour of the petitioner. Since no specific area had been demarcated as being in the ownership of Shri Brij Lal Suri, he was not competent to execute a Will in respect of his half undivided share in the said property, hence the present petition is liable to be dismissed.
26 It is stated that answering respondent and the respondent no. 12, being the daughter of late Sh. Satya Pal Suri are the owners of the half share of the property bearing No. C-61, Kirti Nagar, New Delhi. On merit all the contents of the petition are denied and respondent no. 11 seeks dismissal of the present petition.
27 Petitioner also filed rejoinder to the reply/objection filed on behalf of respondent no. 11 and denied all the objections and reiterated the averments mentioned in the petition.
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 11/48 28 It is pertinent to mention here that after filing of written statement by respondent no. 6 & 11 the petitioner moved an application under order 6 rule 17 CPC which was allowed and respondent no. 11 filed amended written statement however respondent no. 6 failed to file any reply and the objections already filed by respondent no. 6 treated as objections to the amended petition on behalf of respondent no. 6 vide order dated 04.05.2016.
29 On the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 25.05.2016:-
1. Whether the Will dated 25.04.1996 executed by late Shri Brij Lal Suri S/o Late Sh. K.G. Suri is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP
2. Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP
3. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 6 & 11 in the written statement/objections? OPD
4. Relief
30 Petitioner Sh. Sanjeev Suri in order to prove his case examined himself as PW-1 and tendered his evidence by way of affidavit Ex. PW-1/1. He rely upon documents i.e. certified copy of the Will dated 25.04.1996 executed by late Sh. Brij Lal Suri is Ex. PW-1/A, copy of the judgment dated 29.05.2015 passed by Ld. Civil Judge, (Sr. Division) Ms. Kanta Verma, Court No. 1, Shimla, H. P. titled as Sanjeev Suri & Ors Vs. Promila Suri as Mark- A. PC No. 89/10/08 Sanjeev Suri Vs State & Ors 12/48 31 In the cross-examination he admitted that Sh. Brij Lal Suri had filed a suit for partition in respect of property bearing no, C-61, Kirti Nagar, New Delhi. He further admitted that subsequently, he was also impleaded as respondent in the said suit. After the death of Shri Brij Lal Suri the said suit of partition had abated. Sh. Krishan Gopal Suri, my grandfather, who was father of Sh. Brij Lal Suri had bequeathed the property bearing no. C-61 Kirti Nagar, New Delhi to his two sons namely, Shri Brij Lal Suri and Sh. Satya Pal Suri by virtue of a Will. He admitted that respondent no. 11 and 12 are the daughters of late Sh. Satya Pal Suri who had become owner of half of the said property by virtue of the will executed by his father. He admitted that the said property has not been partitioned till date.
32 In further cross-examination he deposed that has no knowledge as to where is the original of the Will Ex. PW-1/A. Mr. Sudhir Abrol has been their family friend since about 1992. Even Mr. Sudhir Abrol was not aware as to where was the original Will Ex. PW-1/A. He has not kept the receipt for applying certified copy of the Will in question at Sub-Registrar's office. In an around 1996 Sh. Brij Lal Suri was residing in C-61, Kirti Nagar, New Delhi. He used to visit him. He had visiting terms with Mr. Brij Lal Suri till his death in 2006.
33 He denied the suggestion that no such Will Ex. PW- 1/A was ever executed by Sh. Brij Lal Suri and that is why the original Will is not available. He denied the suggestion that Ex. PW-1/A is a false document.
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 13/48 34 In further cross-examination he deposed that he does not possess the original of the Will. He has no knowledge that deceased Brij Lal had torned the original Will of Ex. PW-1/A and thrown away. He denied the suggestion that this is the reason that is why the original Will has not been produced in the court. He denied the suggestion that the Will Ex. PW-1/A was got written by him forcefully from the deceased, Brij Lal. He deposed that his grand father had purchased the property in question. His father was four brothers and four sisters. His grand father had left a Will according to which the property was inherited by his two sons namely Sh. Brij Lal Suri and Sh. Satya Pal Suri. He admitted that his grandfather has executed the Will on 20.06.1979.
35 He further deposed that at present he is residing at the address given in affidavit. In 1996 he used to reside at A-88, Brotherhood Apartments, Vikas Puri, New Delhi. Sh. Sudhir Kumar Abrol is his friend and was living in my neighborhood. He has told Mr. Sudhir Kumar Abrol to bear witness to the Will Ex. PW1/A. He voluntarily deposed that he came to know about the Will only in the year 2007. He admitted that my uncle Sh. Brij Lal filed a civil suit for a division of the property, bearing suit no. 1254/88. He admitted that he was a party in this suit. The suit was abated. He admitted that his uncle Sh. Brij Lal filed an application for settlement under order 23. He again said he deny this. He does not know much about the proceedings of the suit. He is not aware of the fact that in the above suit Sh. Brij Lal moved an application for settlement for disclosing the fact that he has executed a Will in the year 1997 in favour of Ms. Promila Suri.
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 14/48 36 In further cross-examination he deposed that he has never tried to find out about all proceedings which have taken place in the above said suit. He is not aware if any process of compromise was initiated in the said suit. They never stayed at Kirti Nagar. He denied the suggestion that he ever had quarrel with his uncle Sh. Brij Lal. He met Sh. Brij Lal around 3-4 months before his death. He admitted that Sh. Brij Lal lived in the C-61, Kiriti Nagar, till his death. He admitted that Ms. Promila Suri has been residing at the above said address before her marriage and after separation. He admitted that he has another litigation with Ms. Promila Suri in respect of a flat at Shimla. He never visited Kirit Nagar house after the death of his uncle Sh. Brij Lal Suri. During his lifetime he used to visit regularly.
37 To a specific question he denied that his uncle Sh. Brij Lal informed him about the settlement made with Ms. Promila Suri on his visits to his residence at Kirti Nagar. He further deposed that Sh. Brij Lal never discussed with him about the above civil suit which he has filed. He denied the suggestion that deceased Brij Lal not used to discuss important issues with him. He admitted that deceased Brij Lal never discussed with him about the Will Ex. PW-1/A and also not discussed about the Will to be executed in 1997. He voluntarily deposed that he is not aware of any Will of 1997.
38 In further cross-examination he deposed that he is graduate, B. Com ( Hon.). He can read, write and understand English language. He voluntarily deposed that the above said civil suit was not against me therefore I did not take any interest in that civil suit. They engaged a counsel in the said suit when PC No. 89/10/08 Sanjeev Suri Vs State & Ors 15/48 the suit was abated after the death of Sh. Brij Lal. The counsel did not disclose all the proceedings to them. He knew the proceedings of present petition. As per his information the compromised application was not finally decided in the above said civil suit. He cannot say anything whether application filed by his uncle late Sh. Brij Lal Suri. He voluntarily deposed that it could be concocted as he was not in position to move. He stated on the basis of reading the copy of the application filed in this case that it was concocted.
39 He denied the suggestion that his uncle late Sh. Brij Lal executed a Will dated 28.01.1997. He has no knowledge that deceased Brij Lal his half share bequeathed in favour of Ms Promila Suri, respondent no. 6.
40 Petitioner further examined Sh. Sudhir Kumar Abrol attesting witness to the Will dated 25.04.1996 executed by Sh. Brij Lal Suri as PW-2 who tendered his evidence by way of affidavit Ex. PW-2/A. I has seen the Will already exhibited as Ex. PW-1/A which bears his signatures at point A, signatures of deceased testator Sh. Brij Lal Suri at point B and signatures of another attesting witness Sh. H.K. Babbar at point C. 41 In the cross-examination he deposed that he is practicing Chartered Accountant since 1982. The petitioner Mr. Sanjeev Suri has been his client since 1992-93. He have been friend of petitioner since their college days. He had only professional terms with Sh. Brij Lal Suri. The will was not typed in his presence. He denied the suggestion that no such Will was signed by Sh. Brij Lal Suri in his presence. He denied the PC No. 89/10/08 Sanjeev Suri Vs State & Ors 16/48 suggestion that he is deposing falsely to help the petitioner as he is my old friend.
42 In further cross-examination he deposed that he knew Sh. Brij Lal for the last 35-40 years. He does not remember the date and month of the death of Sh. Brij Lal Suri. He does not even remember the year of his death. Sh. Brij Lal used to reside in Kirti Nagar. He has never visited Sh. Brij Lal individually, he has visited him only accompanied with Sanjeev Suri. Sanjeev Suri does not reside Kirti Nagar, he resides in Vikas Puri, at address A-88, Brotherhood Apartments, Vikas Puri, New Delhi. He admitted that at present he is not residing at Vikas Puri. He admitted that Sanjeev Suri requested him to bear witness to the Will to be executed by Sh. Brij Lal. He deposed that he is under treatment for his brain. He has stopped practicing as a C.A because he cannot understand the things now. He does not remember since when he stopped as a C.A again said it may be one or two years.
43 In further cross-examination he deposed that he does not remember whose audit he had done before abandoning his practice as C.A. He admitted that he has forgotten many things about this case also. Sh. Brij Lal was around 70 years when he had met him last. He does not remember the date, month or year it may be 10, 12 or 15 years back. He met Sh. Brij Lal Suri for the first time at Kirti Nagar around 40 years back. He does not remember if father of Sh. Brij Lal was alive or not. He is forgetting everything regarding meeting about 40 years back. He admitted that he is close friend of Sh. Sanjeev Suri. He does not remember who else had signed as witness to the Will. He PC No. 89/10/08 Sanjeev Suri Vs State & Ors 17/48 denied the suggestion that he is deposing falsely at the instance of the petitioner. He denied the suggestion that he has no knowledge about this will. It is wrong to suggest that he had come to court to help to the petitioner.
44 He further deposed that he met Sh. Brij Lal once or twice after execution of the alleged will. He had not attended his cremation or any other rituals. In the house in Kirti Nagar, Bua of Sh. Sanjeev Suri, Ms Promila Suri is residing. No body else resides in the property at Kirti Nagar. He does not remember because after that dispute arose between Sanjeev Suri and Sh. Brij Lal Suri. He has no knowledge about another will of deceased Brij Lal.
45 Petitioner further examined Sh. H.K. Babbar (Advocate) another attesting witness to the will as PW-3 who tendered his evidence by way of affidavit Ex. PW3/A. He deposed that he is an attesting witness to the Will dated 25.04.1996 executed by Sh. Brij Lal Suri.
46 In further cross-examination he deposed that he does not know the petitioner Sh.Sanjeev Suri. I have come to know him just 2-3 months back. He deposed that petitioner approached him to give evidence in the present case. He did not know Sh.Brij Lal Suri personally but he got his Will registered in professional capacity. Sh. Brij Lal Suri came to him along with his first witness Sh. Sudhir Abrol on the date of 25.04.1996. He had prepared the Will as per his directions. He did not meet Sh.Brij Lal Suri after 25.04.1996. After about one week, one representative of Sh. Brij Lal Suri came to me for for collection of PC No. 89/10/08 Sanjeev Suri Vs State & Ors 18/48 the Will. He does not remember the name of the representative. He did not know Sh. Sudhir Abrol before 25.04.1996. He denied the suggestion that no Will dated 25.04.1996 was executed by Sh. Brij Lal Suri. He denied the suggestion that he has put his signatures on a false and fabricated Will prepared by the petitioner at his instance. He denied the suggestion that he has come to depose to help the petitioner, who is his old acquittance.
47 In further cross-examination he deposed that Ex. PW1/A is the certified copy. He can say that it is the certified true copy of the original. He has no knowledge where is the original Will. He admitted that at point B on the above exhibit, portion of the word typed 'testator' and portion of the signatures are incomplete in the vision. He denied the suggestion that a paper has been put on the typed word testator and the portion of the signatures and the same are not visible on Ex. PW1/A. Date is not visible at point C on the said exhibit. He admitted that even the rubber stamp at point C is not completely readable. He was not acquainted with Sh. Brij Lal Suri. He was not even acquainted with Sh. Sudhir Abrol. Vol. But he came with Sh. Brij Lal Suri for registration of the Will. He has not taken any identity proof from the Executor or the other witness. He voluntarily deposed that Registrar was satisfied with their identity. He does not maintain any register where he note down the details of the Wills he has got executed. After registration he has collected the Will and handed over the representative of the testator Sh. Brij Lal Suri after a week. The authority letter was submitted to the Sub Registrar office. He has not kept the spare copy. He has not taken any signatures from the representative while handing over the original Will. He voluntarily deposed that he did that in PC No. 89/10/08 Sanjeev Suri Vs State & Ors 19/48 routine. He does not remember even approximately how many Wills he got registered at Sub Registrar Office. He denied the suggestion that he never collected the Will nor he has ever seen the original Will after its registration. He admitted that he has personally never verified about the identity of Sh. Brij Lal Suri and Sh. Sudhir Abrol.
48 Petitioner further examined Shri Vivek Yadav, LDC, Sub- Registrar-II, Basai Darapur as PW-4 who brought the summoned record i.e registered Will vide registration No. 30754 Addl. Book No. 3, Vol. No. 2929 on page no. 85 dated 25.04.1996. He seen the certified copy of Will already exhibited as Ex. PW-1/A and compared the same with the record brought by him and found to be correct.
49 In the cross-examination he deposed that he was not present at the time of registration of the will in question. He has been posted in this office from November , 2016. He has no personal knowledge about the record brought by me.
50 Ms Promila Suri, respondent no. 6 appeared in witness box as RW-1 and tender her evidence by way of affidavit Ex. RW-1/A. She reply upon the documents i.e original will dated 28.01.1997 executed by Shri Brij Lal in my favour as Ex. RW-6/1, Certified copies of the statement Shri Sudesh Chander Seth, as attorney of Shri Brij Lal Suri, and application moved under order 23 rule 3 CPC alongwith affidavit of Shri Brij Lal Suri and Promila Suri as Ex. RW-6/2 and copy of Will dated 20.06.1979 executed by my father Shri Krishan Gopal Suri as Mark A being the photocopy.
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 20/48 51 In the cross-examination she deposed that she is an Architect and interior designer. She is aware of contents of her affidavit Ex. RW-1/A. She is not aware that a will dated 25.04.1996 was executed by deceased Sh. B.L. Suri. She admitted that deceased Sh. B.L. Suri was her real brother. She admitted that deceased Sh. B.L. Suri had filed a suit for partition of property C-61, Kirti Nagar, New Delhi-15. She admitted that was one of the parties in the said suit as defendant no. 7. Deceased B.L. Suri never lodged any police complaint against her regarding harassing and threatening him. She denied the suggestion that Sh. B.L. Suri lodged a complaint against her in P.S Kirti Nagar. The deceased B.L. Suri was suffering from breathing and T.B and was sick for the last 6 years prior to his death and was hospitalized on and off during the said period in Kalra Hospital. Sometimes he used to admit for a week and ultimately died at Kalra Hospital. The Partition suit was finished at High Court before his death. She denied the suggestion that Partition suit was abated due to death of Sh. B.L. Suri. She denied the suggestion that she was not having cordial relations with deceased B.L. Suri.
52 She admitted that a civil case was filed by her at Shimla court against Sanjeev Suri and still pending for the last 10 years. She voluntarily deposed that she is the owner of property bearing situated at Fingas near State Bank Mall. Sanjeev Suri forcibly alongwith his brother broken the locks of the said property therefore, she filed the civil suit. She denied the suggestion that a decree was passed by Shimla court against me 29.05.2015 by the court of Ms Kanta Verma, Ld. Civil Judge, Court No. 1, Shimla. She voluntarily deposed that Ms Kanta Verma Ld. PC No. 89/10/08 Sanjeev Suri Vs State & Ors 21/48 Judge passed the order that she is the owner of half of the said property and half property owned by Sanjeev Suri but she filed appeal against the said order.
53 In further cross-examination she deposed that she knew Sudesh Chander Seth because her father treated him as a son prior to 1980. She denied the suggestion that Sudesh Chander Seth was very closed to her. She has not filed any compromise application in the partition suit which was pending before the High Court. She has no idea about the compromised arrived in Partition Suit at Tis Hazari Court. She denied the suggestion that will dated 25.04.1996 is legal, genuine and last will of deceased B.L. Suri. She denied the suggestion that the will dated 25.4.96 is duly attested by attesting witnesses, namely Sudhir Kumar Abrol and H.K. Babar and duly registered. She denied the suggestion that she was fully aware of Will dated 25.04.1996 executed in favour of the petitioner and respondent no. 2. She denied the suggestion that the will dated 25.04.1996 was executed in favour of the petitioner and respondent no. 2 as they were closely attached with the deceased. She denied the suggestion that Sudesh Chander Seth was never authorised by the deceased or that Sudesh Chander Seth manipulated and fabricated the application under order 23 rule 3 CPC in Partition Suit.
54 Respondent further examined RW-2 Major S Malik, attesting witness to the Will dated 28.01.1997 executed by late Shri Brij Lal Suri and tendered his evidence by way of affidavit Ex. RW-2/A. He after seeing the original Will already exhibited as Ex. RW-6/1 deposed that it bears his signatures at point B. The Will PC No. 89/10/08 Sanjeev Suri Vs State & Ors 22/48 Ex. RW-6/1 also bears the signatures of other attesting witness Sh. Lalit Kumar at point C and the signatures of deceased testator at point A and they all signed at the same time in presence of each other.
55 In the cross-examination he denied the suggestion that respondent no. 6 Ms Promila Suri came to him for preparation of alleged Will dated 28.01.1997 Ex. RW-6/1. He deposed that his typist might have typed the Will Ex. RW-6/1. The will was typed on his instructions by the typist. He further deposed that Late Sh. Brij Lal came to him for preparation of the Will Ex. RW6/1. The photocopy he is carrying today of the Will Ex. RW-6/1 is provided by Ms Promila Suri, respondent no. 6. The photocopy of the Will which he is carrying is Ex. RW-2/X1. He admitted that Ex. RW-2/X1 containing his hand written notes and underlining. He had joined the Bar in the year 1986 after 20 years of retirement from Army at Vikas Sadan where the Will Ex. RW-6/1 was registered. He admitted that first page of Will Ex. RW-6/1 does not bear his signature and other attesting witness signatures. He does not remember now after 20 years gap whether will was typed on the same day and registered on the same day or it may be registered on the next day. His office used to collect the copy of the registered will from the office of Sub- Registrar and whenever somebody approaches they deliver the same. Today he does not remember who came to him to collect the Will Ex. RW-6/1 from his office. He is not summoned by any other court with regard to will Ex. RW-6/1.
56 In further cross-examination he deposed that he does not know or also not remember the age of Sh. Brij Lal when he PC No. 89/10/08 Sanjeev Suri Vs State & Ors 23/48 came to him for preparation of the will. The age must have been written in the Will Ex. RW-6/1. The will Ex. RW-6/1 does not mention the age of late Sh. Brij Lal. On the day of preparation of the Will Ex. RW-6/1 Late Brij Lal appear to him in sound mind and this is the basis of mentioning in his affidavit the was of sound mind. He cannot tell the age of the deceased testator on the day of execution of will Ex. RW-6/1. He cannot tell whether he was 40,45, 50 or 55 years of old. He voluntarily deposed that he was single, not married and having no other relations. He knew this because he mentioned this in his will. he denied the suggestion that as Mr. B.L. Suri did not turn up for execution of any will, therefore, he cannot tell whether he was 40,45,50 or 55 years of age.
57 He further deposed that Mr. Lalit Kumar other attesting witness as on today might be 62 years of age. He does not take Mr. Lalit Kumar, his associate as attesting witness in every will drafted by him. He admitted that Mr. Lalit Kumar signed the will Ex. RW-6/1 on his instructions. He denied the suggestion that the Will Ex. RW-6/1 was not prepared at the instruction of deceased testator Brij Lal Suri. He denied the suggestion that the Will Ex. RW-6/1 is forged and fabricated document. He denied the suggestion that that Ex. RW-6/1 has been forged on the behest of respondent no. 6. He admitted that he has come to the court on the request of respondent no. 6 and she prepared her affidavit and she corrected the same. He denied the suggestion that Will Ex. RW-6/1 is forged and fabricated as it does not contain all the properties of deceased testator Sh. Brij Lal Suri. Vide separate statement of respondent no. 6, evidence on behalf of respondent no. 6 was closed on 19.04.2017.
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 24/48 58 Issue no. 1 & 2 In order to decide the above issues, let us peruse the provisions and principles of law laid down by the Apex Court.
18. 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". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by PC No. 89/10/08 Sanjeev Suri Vs State & Ors 25/48 such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane"
may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
20. 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:-
"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 PC No. 89/10/08 Sanjeev Suri Vs State & Ors 26/48 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 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".
21. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
22. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 27/48
68. Proof of execution of document required by law to be attested.--- 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 provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
23. The judgment of the Supreme Court in the case reported as H. Venkatachala Iyangar Vs. B.N. Thimmajamma, AIR 1959 SC 443, is one of the early and celebrated judgments on the subject. After construing, amongst others, the above statutory clauses, the court ruled thus:-
"18... the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained?
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 28/48
Stated broadly it is the decision of these
questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19.... there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the PC No. 89/10/08 Sanjeev Suri Vs State & Ors 29/48 testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said PC No. 89/10/08 Sanjeev Suri Vs State & Ors 30/48 dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
( emphasis supplied)
24. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other PC No. 89/10/08 Sanjeev Suri Vs State & Ors 31/48 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 circumstacnes 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 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 PC No. 89/10/08 Sanjeev Suri Vs State & Ors 32/48 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)
25. In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1 SCC 369, after analyzing the ratio in H. Venkatachala Iyangar ( supra), the Supreme Court culled out 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 PC No. 89/10/08 Sanjeev Suri Vs State & Ors 33/48 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 prsoved to be the last will and testament of the testator. Normally , the onus which lies on the propounder can be taken to be 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 susbtantial 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 circusmtances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the PC No. 89/10/08 Sanjeev Suri Vs State & Ors 34/48 execution of the will excite the suspicion of the court, the propounder must remove all ligitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is 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 emphasises 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 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."
( emphasis supplied)
26. The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural PC No. 89/10/08 Sanjeev Suri Vs State & Ors 35/48 heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his 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 circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] it is the duty of the propounder 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. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. ( See Pushpavathi v.
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 36/48 Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied)
27. Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that "(A)ny person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
28. In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that PC No. 89/10/08 Sanjeev Suri Vs State & Ors 37/48 a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied) 59 In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 PC No. 89/10/08 Sanjeev Suri Vs State & Ors 38/48 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, 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 testatrix 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 testatrix, 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 testatrix sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix 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 presence of the testatrix, 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.
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 39/48 20.2 Section 68 & 71 of the 1872 Act:
68. Proof of execution of document required by law to be attested - 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:
71. Proof when attesting witness denies the execution -
If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any PC No. 89/10/08 Sanjeev Suri Vs State & Ors 40/48 failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.
22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of PC No. 89/10/08 Sanjeev Suri Vs State & Ors 41/48 the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
60 The burden of prove issue no. 1 & 2 is on petitioner The petitioner, Sh. Sanjeev Suri appeared in witness box as PW-1 and his testimony has been discussed in detail hereinabove. Petitioner further examined Sh. Sudhir Kumar Abrola, the attesting witness as PW-2 and another attesting witness Sh. H.K. Babbar. The factum of the registration of the Will Ex. PW-1/A dated 25.04.1996 is also proved by PW-4 Sh. Vivek Yadav from Sub-Registrar office. According to the petitioner he came to know about the Will Ex. PW-1/A dated 25.04.1996 from attesting witness Sh. Sudhir Kumar Abrol, PW-2. However, in the affidavit he did not named Sudhir Kumar Abrol, the attesting witness who disclosed about the Will in March 2007. However, in the petition it is specifically pleaded. PW-2 Sh. Sudhir Kumar Abrol is silent on this important aspect that he had disclosed and pass through the knowledge of deceased Brij Lal Suri to petitioner Sanjeev Suri.
61 It is admitted case of the petitioner that the original Will is not produced and the certified copy placed on record Ex. PW-1/A which was obtained after searching by the petitioner from the Sub-Registrar office.
62 In the detailed cross-examination petitioner, Sanjeev Suri admitted about the litigation between the parties PC No. 89/10/08 Sanjeev Suri Vs State & Ors 42/48 before the Hon'ble High Court in respect of a suit for partition with regard to property bearing no. C-61, Kirti Nagar, New Delhi. PW-1 Sh. Sanjeev Suri denied the knowledge of original will. He admitted that PW-2 Sh. Sudhir Kumar Abrol is family friend since 1992. It is pertinent to mention here that the stand taken by counsel for respondent no. 6 Sh. K.N. Singh is that deceased Brij Lal Suri has torned the original Will of Ex. PW-1/A and thrown away. It established on record that respondent no. 6 admitted the existence of original will, therefore, the certified copy proved on record is admissible as PW-1/A. 63 The gaining about the knowledge of the Will Ex. PW- 1/A by the petitioner is contrary to the stand taken when PW-1 Sh. Sanjeev Suri appeared in witness box as well as PW-2 Sh. Sudhir Kumar Abrol who is silent about this vital fact, therefore, a doubt created how the petitioner had gained the knowledge of the Will Ex. PW-1/A. 64 The testimony of PW-2, attesting witness, Sh. Sudhir Kumar Abrol is hereinabove discussed in detail. The PW-2 Sh. Sudhir Kumar Abrol, is practicing Chartered Accountant and he is friend of petitioner since college days and had professional terms with deceased Brij Lal Suri. According to his testimony in cross- examination he never visited Sh. Brij Lal Suri alone but always met him with petitioner, Sanjeev Suri. He admitted that petitioners, Sanjeev Suri requested him to become witness of the Will of deceased Brij Lal Suri but later on he deposed that he is under treatment of brain and do not remember anything and stop practice Chartered Accountant. He admitted that he is close friend of Sanjeev Suri.
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 43/48 65 The testimony of PW-2 Sh. Sudhir Kumar Abrol established that he is close family friend of petitioner for the last 40 years. He is not having any independent relations with deceased Brij Lal Suri and deceased never invited him and disclosed him about the execution and registration of Will Ex. PW- 1/A. It is the petitioner at whose instructions he had signed the Will and become attesting witness. It is pertinent to mention here that PW-2 Sh. Sudhir Kumar Abrol in his affidavit did not disclose about the treatment of his brain. On the contrary in the chief examination he deposed 20 years old facts regarding execution and registration of Will. Therefore, the testimony of PW-2 is not trustworthy, cogent and fail to pass the litmus test as envisage under Section 63 of Indian Succession Act.
66 Now, coming to the other attesting witness Sh. H.K. Babbar. He is an advocate and had drafted the Will Ex. PW-1/A as per direction of deceased Brij Lal Suri. But he did not know him personally and got registered the Will in professional capacity and never met deceased Brij Lal Suri after 25.04.1996. He also admitted that he did not know Sh. Sudhir Kumar Abrol, the other attesting witness. He denied the knowledge of original Will. He admitted that in the certified copy Ex. PW-1/A there are incomplete signature of testator. The date is also not visible at point 'C' Ex. PW-1/A. The rubber stamp is also not visible. He did not take the identification proof of executant and other attesting witness. He does not maintain any register. The testimony of PW-3 Sh. H.K. Babbar established that he was an advocate who drafted the Will of deceased Brij Lal Suri Ex. PW-1/A and never intended to become attesting witness. In the given circumstances on the date of execution and registration. There PC No. 89/10/08 Sanjeev Suri Vs State & Ors 44/48 was no other person available to become attesting witness except Sudhir Kumar Abrol, therefore he also put his signatures on the Will. In the strict legal sense he is a scriber of the Will and never intended to become attesting witness. Therefore, PW-3 also failed to fulfill the ingredient of Section 63 of Indian Succession Act.
67 Now let us peruse the Will Ex. PW-1/A the certified copy. The copy produced before the court does not bear the complete signature of the testator and the page is seems to be torned. The rubber stamp at point "C" on the will is also not readable. The significant feature is that there is no mention of complete details of complete family of the deceased Sh. Brij Lal Suri. He has not mentioned any reason and explanation of excluding the real legal heir including respondent no. 6 Smt. Promila Suri and other real alive Class I heirs.
68 It is pertinent to mention here that the influence of petitioner cannot be ruled out in execution of Will Ex. PW-1/A because his 40 years close friend is attesting witness who hardly known to deceased testator. The other witness is professional advocate who drafted the will.
69 In my considered opinion, on the basis of above discussion and observation the deceased Brij Lal Suri did not execute the Will Ex. PW-1/A dated 25.04.1996 as a legal and valid will, therefore, issue no. 1 & 2 are decided against the petitioner and in favour of respondents.
70 Issue No. 3The issue no. 3 is framed on the basis of objections of respondent no. 6 Mrs Promila Suri and respondent no. 11, Ms Suzata Gupta.
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 45/48 71 It is pertinent to mention here that respondent no. 11 has not examined any witness, however, respondent no. 6 Ms Promila Suri examined herself as RW-1 and she also examined RW-2 Major S Malik, one of the attesting witness of the Will relied by her dated 28.01.1997 Ex. RW-6/1. As per photocopy of the documents i.e petition and order filed on record which is admitted by respondent no. 6, Ms Promila Suri that she had filed a probate petition before the Hon'ble High Court in January, 2007 on the basis of Will Ex. RW-6/1 dated 28.01.1997. As per order dated 21.04.2009 the Hon'ble Mr Justice Rajiv Sahai Endlaw, the petition was dismissed as withdrawn.
72 In the present petition also the respondent no. 6 is not claiming any letter of administration or probate on the basis of Will dated 28.01.1997 Ex. RW-6/1. In her cross-examination she admitted the litigation pending before the Simla court with petitioner with regard to the property situated at Simla of deceased Brij Lal Suri. The main objection of the respondent no. 6 is that deceased Brij Lal Suri never executed the alleged Will dated 25.04.1996 and same is forged and fabricated and manipulated. However, no oral and documentary evidence produced in court to corroborate the allegations. Both parties admitted the civil litigation of partition pending between the parties. She relied on Will dated 28.01.1997 Ex. RW-6/1 is the later and subsequent and last Will. She examined RW-2 Major S Malik, one of the attesting witness. His testimony has been discussed hereinabove in detail.
73 RW-2 Major S. Malik who after retirement from Air Force started practicing as lawyer and admitted the fact that Will PC No. 89/10/08 Sanjeev Suri Vs State & Ors 46/48 Ex. RW-6/1 was typed at his instructions by the typist. He admitted that photocopy brought by him in the court provided by Ms Promila Suri. The photocopy was also exhibited as Ex. RW- 2/X1. He deposed that he does not remember the age of Brij Lal Suri at the time of execution of the Will. According to him the age was written in the Will but Will does not mention the age of late Brij Lal Suri. The other attesting witness Lalit Kumar was his associate. Lalit Kumar also signed the will on his instructions. The testimony of RW-2 also established that the Will was got typed and drafted at his instructions and the other attesting witness was also not known to deceased Brij Lal Suri and being associate signed the Will.
74 The testimony of RW-2 Major S Malik established that the deceased Brij Lal Suri did not instruct him for preparation of Will. He did not joined by any independent attesting witness. No prudent man would allow somebody else to give instructions and allow unknown person to become attesting witness. Both attesting witness to the Will Ex. RW-6/1 are improbable and unnatural witnesses not belonging to the deceased.
75 The testimony of RW-2 Major S Malik further established that at no point of time the Will Ex. RW-6/1 dated 28.01.1997 executed by deceased Brij Lal Suri and it also not pass the litmus test as provided under Section 63 of Indian Succession Act. It is significant that there is no mention of revocation of earlier Will dated 25.04.1996 Ex. PW-1/A now relied later on Will Ex. RW-6/1 of deceased Brij Lal Suri, by respondent no. 6. In the absence of mentioning of revocation of earlier Will PC No. 89/10/08 Sanjeev Suri Vs State & Ors 47/48 also raises doubt and suspicion about the genuineness of the Will.
76 On the basis of above observation and discussion respondent no. 6 & 11 failed to establish the objections and that Ex. RW-6/1 is the last, legal and valid will of deceased Brij Lal Suri, therefore issue no. 3 is decided against respondent no. 6 and 11.
77 Relief In view of finding on issue No. 1 & 2 the petition filed by the petitioner is dismissed. No order as to cost. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 19th January, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 48/48
PC No. 89/10/08 Sanjeev Suri Vs State & Ors 49/48