Delhi District Court
Manish Joshi vs The State Govt Of Nct Of Delhi on 18 December, 2023
IN THE COURT OF SH. SHIV KUMAR, ADDL. DISTRICT
JUDGE-02 (WEST DISTRICT), TIS HAZARI COURTS
DELHI.
Probate Case No.- 36/19
CNR No. DLWT01-006751-2019
DLWT010067512019
Manish Joshi
S/o late Puran Chandra Joshi
R/o GH-14/765, Paschim Vihar
New Delhi
.......Petitioner
Versus
1. The State Govt. of NCT of Delhi
through Principal Secretary,
Delhi Secretariat, I.P. Estate,
New Delhi-110002
2. Mrs Kanchan Singh
W/o Gurbachan Singh
R/o F-26-B, BSES Office,
Hari Nagar, Mayapuri,
South-West, Delhi-110064
......Respondents
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT FOR GRANT OF PROBATE OF THE
Will DATED 18.11.2014 EXECUTED BY LATE SH.
PURAN CHANDRA JOSHI
Date of institution of the case : 23.08.2019
Date of for judgment reserved : 24.11.2023
Date of pronouncement of judgment: 18.12.2023
PC No. 36/19 Manish Joshi vs state Page 1 of 44
JUDGMENT
1. Vide this judgment, I shall decide the petition filed by the petitioner, under Section 276 of the Indian Succession Act whereby which the petitioner has sought grant of Probate of the Will dated 18.11.2014 executed by his father late Sh. Puran Chandra Joshi who died testamentary on 14.01.2017.
CASE OF THE PETITIONER, AS PER HIS PETITION
2. According to the petition, the case of the petitioner in nutshell is that Late Sh. Puran Chandra Joshi (hereinafter referred to as ' the deceased'), father of petitioner and respondent no. 2, was residing in a flat bearing no. GH-14/765 Paschim Vihar, Delhi and the said flat was allotted to the deceased on 07.09.1990 (hereinafter referred to as 'the property in question'). It is averred that the property in question was the self-acquired property of the deceased and it was got freehold after complying a due procedure prescribed by the DDA on 20.05.2015.
3. It is further averred that the deceased died on 14.01.2017 and the mother of the petitioner late Smt. Jayanti Joshi had also expired on 21.09.2006. It is further mentioned in the petition that out of the wedlock of Sh. Puran Chandra Joshi and Smt. Jayanti Joshi, only two children i.e petitioner herein and respondent no. 2 were born. It is further averred that it was only the petitioner who maintained the love and affection and had given all love and assistance to his father and same was not done by the respondent PC No. 36/19 Manish Joshi vs state Page 2 of 44 no. 2, rather she used to quarrel and harassed her father till his last day of life. It is further averred that because of the irresponsible and ill-mannered behaviour of respondent no. 2, the deceased was anxious about the future of both of their son and daughter and he had given ample money, jewellery and valuable gifts to respondent no. 2 as a traditional father in order to ensure all the wealth and prosperities in the life of respondent no. 2.
4. It is further averred that besides of the above stated behaviour of respondent no. 2, she also got married with a person of her own wish and her would be husband was not at par with the moral standard and mind set of the deceased, even though respondent no. 2 received all the love, affection, gifts etc, from her father.
5. It is further averred that out of love and affection, the deceased, during his life-time, had executed a registered Will dated 18.11.2014 in favour of the petitioner thereby he bequeathed his all rights and shares in favour of the petitioner in respect of the property in question. The said Will was duly registered before the Sub Registrar- IIA, Punjabi Bagh, Delhi on 18.11.2014.
6. It is further mentioned in the petition that one application for letter of administration was filed by respondent no. 2 bearing PC No. 17/2019 before this court and the same is pending for adjudication.
PC No. 36/19 Manish Joshi vs state Page 3 of 447. The petitioner has prayed for probate of the registered Will dated 18.11.2014 executed by the deceased in respect of the property in question.
8. Upon filing the present petition, notice of the petition was issued to all the respondents. Citation for general public was published in the daily newspaper "Rashatiya Sahara" dated 05.09.2019. Notice was also served to the State through Chief Secretary and to the Collector/SDM. No objections were received to the petition, from any person of general public despite publication of the citation in newspaper.
9. The SDM Punjabi Bagh has filed a valuation report in respect of the property bearing no. GH-14, Paschim Vihar valuing the same to be of Rs.43,05,600- (Rupees Fourty Three Lakh Five Thousand Six Hundred only).
10. That the respondent no. 2 appeared in this case and filed objections/reply to the petition of the petitioner. In this case there are only two respondents i.e. Respondent no. 1/State and respondent no. 2/Mrs Kanchan Singh and Respondent no. 2 is the only contesting respondent.
CASE OF RESPONDENT NO.2, AS PER HIS REPLY
11. Respondent no. 2 has filed reply/objection to the present petition by taking preliminary objections that her father was suffering from several health problems. It is alleged by the respondent no. 2 that the deceased was suffering from Alzheimer PC No. 36/19 Manish Joshi vs state Page 4 of 44 in early 2013 and to keep him calm the petitioner was giving him sleeping pills continuously till his death.
12. It is further contended that since then the serious mental illness coupled with heart ailment, aggravated the health condition of the deceased and he had become almost terminally ill and was in the critical state of health. Since 2013 onwards, the deceased was having weak memory power, his capacity to think, take any independent decision, weight the pros and cons of any act or to do anything after knowing and understanding the purport and consequence of the same were deteriorated.
13. It is further contended that respondent no. 2 regularly and constantly took care of the health of her father by visiting and staying with him. It is contended that since 2013, the deceased was strictly under constant medical aid and support for his survival. At the age of 60, the deceased died due to multiple organ failure-cumulative health problems such as serious heart ailment, mental illness, Alzheimer, acute diabetes and blood pressure etc.
14. It is further contended that the deceased died on 14.01.2017 and respondent no. 2 was present for the last rites and customs. Thereafter, the petitioner stopped responding to the calls of the respondent no. 2 and he never called her since then. As respondent no. 2 was taking care of her late father's estate, she had filed a petition for letter of administration of her late father's estate and made petitioner as a party in that petition. It is further contended that after receiving the summons from this PC No. 36/19 Manish Joshi vs state Page 5 of 44 Hon'ble Court, in counter blast of the petition of respondent no. 2, petitioner had filed the present petition for grant of Probate on false and frivolous grounds and on the basis of forged Will and other documents.
15. It is further contended that petitioner never disclosed any execution of Will, after the death of the deceased and kept mum, till then she approached the Hon'ble court through her petition for issuance of letter of administration and petitioner filed the present petition on the basis of the Will dated 18.11.2014. It is contended that when the alleged Will is said to have come to existence, the deceased was physically, mentally and intellectually unable to get prepare any such Will or knew or understood its contents or purport or to execute the same or to do anything connected with it and not in a sound disposing state of mind on 18.11.2014 since he was terminally ill since 2012 onwards.
16. It is further contended that the deceased had never given any property or money to the petitioner and would never have chosen him as his legatee by that ignoring his own daughter. She is found to be disinherited to the share of her father's property and which he would never have done during his life-time if he had memory and thinking power. It is contended that the Will dated 18.11.2014 appears to be a fabricated document as the signatures of the deceased has been fabricated and the same is not the signature of the deceased.
17. It is further contended by respondent no. 2 that due to PC No. 36/19 Manish Joshi vs state Page 6 of 44 constant and regular mental harassment given by the petitioner and his wife the medical condition of the deceased was deteriorating day by day and on several occasions, she took her father to her home to give him a good atmosphere but the petitioner in few hours took him back to give further mental torture.
18. On merit all the contents mentioned in the petition has been denied by the respondent no.2 and she prayed that petition filed by the petitioner may be dismissed with exemplary costs.
19. The petitioner has also filed replication to the written statement, filed by respondent no. 2 and reiterated the contents of his petition and denied all the objections taken by respondent no.
2.
20. On the basis of the pleadings, the following issues have been framed vide order dated 25.11.2020.
1. Whether the deceased Sh. Puran Chandra Joshi executed a valid and enforceable Will dated 18.11.2014 as claimed by the petitioner? OPP.
2. Whether the petitioner is entitled for Probate/Letters of Administration on the basis of the aforesaid Will, as claimed? OPP.
3. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 in the objections/reply? OPR.
4. Relief.
21. Parties were directed to adduce evidence.
PC No. 36/19 Manish Joshi vs state Page 7 of 44EVIDENCE ON BEHALF OF PETITIONER
22. Petitioner in support of his case has examined three witnesses.
23. Sh. Manish Joshi, Petitioner, appeared in the witness box as PW-1 and tendered his affidavit in evidence as Ex PW-1/A. In his affidavit, he reiterated and reaffirmed the averments made by him in his petition and relied upon the following documents:
1. Ex. PW-1/1(Colly)(OSR): copies of Allotment letter and Conveyance deed dated 15.06.2015.
2. Ex. PW-1/2(Colly) (OSR): copies of Aadhar Card, election ID Card, Electricity Bill and Water Bills.
3. Ex.PW-1/3: death certificate of Sh. Puran Chandra Joshi, of his father.
4. Ex. PW-1/4: death certificate of Smt. Jayanti Joshi, his mother.
5. Ex. PW-1/5: original Will dated 18.11.2014 of deceased Puran Chandra Joshi.
24. In his cross-examination PW-1 admitted the suggestion that in Ex. PW-1/1 it is mentioned at portion 'A to A' that it is a possession letter and not allotment letter and it is mentioned at point 'B to B', the hand over possession of the flat to him/her. He denied the suggestion that Ex. PW-1/1 is not an allotment letter but it is only a possession letter. He denied the suggestion that purposefully he is not filing the allotment letter because it was in the name of his late mother, namely Smt. Jayanti Joshi.
PC No. 36/19 Manish Joshi vs state Page 8 of 44He denied the suggestion that because of the manipulation of the Ex. PW-1/1 he has not arrayed the DDA as a witness to bring the original allotment letter of the property in question. He admitted the suggestion that the alleged possession letter belong to 07.09.1990 and the conveyance deed is dated 15.06.2015. He admitted the suggestion that conveyance deed was executed after 25 years of the allotment of property in question. He admitted the suggestion that the Will in question has been executed prior to the execution of the conveyance deed. He denied the suggestion that he got under pressure the execution of conveyance deed, in favour of his father when he was seriously ill.
25. In his further cross-examination, PW-1 deposed that his father was in a private job as a store officer and he did not know, how much salary he was getting. He further deposed the deceased was suffering from blood pressure except that he did not have any problem. He denied the suggestion that because of multiple diseases including the mental disease, the deceased was externed from his job or that he lost his memory very often. He further deposed that before death the deceased had only weakness and no disease at all. PW-1 denied the suggestion that he was admitted to Maharaja Agarsen Hospital due to serious illness from time to time but the deceased went to the hospital just one day before the death. PW-1 denied the suggestion that he deliberately concealing the medical record of his late father. PW- 1 further deposed that he had not collecting the medical paper of his late father from the Maharaja Agarsen Hospital. PW-1 further deposed that he cannot admit or deny whether his father was getting less than Rs. 10,000/- as his salary. PW-1 denied the PC No. 36/19 Manish Joshi vs state Page 9 of 44 suggestion that there was a good relation between his late father and his daughter.
26. In his further cross-examination, PW-1 deposed that the marriage of her sister took place at Arya Samaj Mandir, Ram Gali, Hari Nagar. He admitted the suggestion that he along with his father and mother except other relatives, attended the marriage of his sister. He recognized his sister and his brother-in- law in photographs encircled as Mark A (Colly). However, he was unable to identify other person in photocopy of the photographs Mark A (Colly). He denied the suggestion that he is deliberately not identifying his relatives in the photographs Mark A (colly). He denied the suggestion that the marriage between his sister and his brother-in-law was an arranged marriage. However, he voluntarily deposed that it was a love marriage. He admitted that it was very simple marriage and that is why it was held in Arya Samaj Mandir. He denied the suggestion that Mark B was written by his father. He denied the suggestion that he is deliberately not recognizing the hand writing of father on Mark B. He denied the suggestion that he is deliberately mentioning the wrong date of birth of his sister. PW-1 admitted the suggestion that his sister, sometimes used to visit his father in order to look after his health. He voluntarily deposed that but she every time quarrel with him.
27. In his further cross examination, PW-1 denied the suggestion that he is deliberately avoiding the above question. PW-1 admitted the suggestion that neither he nor his father nor any family member ever lodged any complaint regarding PC No. 36/19 Manish Joshi vs state Page 10 of 44 quarreling of his sister with his father. He denied the suggestion that they had not lodged any complaint as no such incident had ever happened. He denied the suggestion that no valuable articles/gifts were given to his sister in her marriage or that being daughter, the behaviour of respondent no. 2 towards her parents was very sober. PW1 denied the suggestion that his father was suffering from heart problem, blood pressure and blood sugar and mental illness of Alzheimer or that after 2010, the state of mind of his father was not sound or that he is deliberately stated concocted facts in his affidavit. He denied the suggestion that alleged Will was not executed by his father in sound state of mind.
28. Sh. Mahesh Kumar, one of the attesting witnesses appeared in the witness box as PW-2 and tendered his evidence by way of affidavit Ex. PW-2/A. He relied upon the Will already Ex. PW-1/5 and deposed that he is one of the attesting witness to the said Will which bears his signatures at point X.
29. In his cross-examination, PW-2 deposed that he knew the deceased Puran Chand Joshi for the last several years. He further deposed that apart from him, another attesting witness Sh. Ram Singh has already expired. He deposed that he did not know when the wife of the deceased had expired. He did not remember the date and year of retirement of the deceased.
30. In his cross-examination, PW-2 admitted that the Sub- Registrar concerned had not stated the contents of the Will Ex. PW-1/5 at the time of its registration. However, he voluntarily PC No. 36/19 Manish Joshi vs state Page 11 of 44 deposed that the Sub-Registrar had inquired form him about the whereabouts of the deceased and whether the deceased had signed before him or not. He further deposed that the deceased had signed at points A & B before one Peon of the said office and on the back side of the Will, the deceased had signed in the presence of the Sub-Registrar. He further deposed that deceased had also put his thumb impression in the presence of the Sub- Registrar.
31. He admitted that the Will was drafted in his presence at Nangloi old court by one typist namely Manoj Kumar Tomar. He did not remember whether the deceased had dictated or given instructions to the said typist for preparing the Will. He does not remember the date when the said Will was drafted. He further deposed that he himself got attested his affidavit in evidence Ex. PW-2/A and denied the suggestion that deceased had signed the Will in front of him.
32. PW-3 Sh. Harishpal, CDV from the office of Sub- Registrar, appeared in the witness box and deposed that he was served with a copy of Family Will bearing registration no. 1144 in Book no. 3, Vol 416 on page78 to 79 dated 18.11.2014 and deposed that he had brought above-said original register and photocopy of the said Will already placed on record is already Ex. PW-1/5.
33. In his cross-examination, PW-3 deposed that he did not know the contents of the Will as he was not present at the time of registration of the Will and the deceased has not signed the PC No. 36/19 Manish Joshi vs state Page 12 of 44 alleged Will in front of him.
EVIDENCE ON BEHALF OF RESPONDENT NO.2.
34. From the side of respondents, two witnesses have been examined.
35. Mrs Kanchan Singh/respondent no. 2 entered into the witness box as DW-1 and tendered her affidavit in evidence Ex. DW-1/1 and reiterated and re-affirms the contents of her reply. He relied upon the following documents:
(i) Ex. DW1/A: Receipt of Arya Samaj Mandir Ram Gali.
(ii) Ex. DW1/B (Colly): the photographs of her marriage.
(iii) Ex. DW1/C: a note written by his father.
36. In her cross-examination, DW-1 deposed that her affidavit in evidence was prepared by her counsel by his own. She further deposed that her date of birth is 14.07.1972. The Ex. DW-1/C depicts her date of birth as 4th December instead of 14th July since her birthday used to be celebrated by her father on 4 th December. DW-1 further deposed in her cross examination that it was year 2013, when it was detected that her father was suffering from Alzheimer disease. She came to know that her father was suffering from Alzheimer from her brother Manish Joshi. She further deposed that she did not have any document to show that her father was suffering from Alzheimer since all the medical record is with her brother and Alzheimer is a disease of memory loss.
PC No. 36/19 Manish Joshi vs state Page 13 of 4437. DW-1 in her cross examination, She deposed that she did not make any efforts to get her father treated from any doctor as she had information that her brother got him treated from some doctor. She further deposed that she can say the name of doctor from which her brother got her father treated namely Dr. Dhiraj. She did not know as to what was Dr. Dhiraj treated her father for nor does she have the prescription for the same. She further deposed that it was her brother, who told her that her late father was being treated by Dr. Dhiraj. She is aware with the fact that Dr. Dhiraj was specialist of diabetes and blood pressure.
38. In her further cross-examination, she deposed that her father expired on 14.01.2017. During cross examination, DW-1 further deposed that she met her father 15 days before his date of death and when she met him last time, he was at his home and was lying on the bed at the rest stage. She further deposed that her father was expired in the hospital and he was admitted to the hospital on 13.01.2017 in Maharaja Aggarsain Hospital.
39. DW1 further deposed in her cross examination that she visited her father's house 15 days before his death and when her brother telephonically informed her that her father is not well, on that she went to meet him. She further deposed that her marriage was solemnized in Arya Samaj Temple as it was the agreement between her father-in-law and her father. She denied the suggestion that her father was not agreed with her marriage rather she volunteered that if her father was not agreed then why he participated in her marriage and performed the Kanyadaan.
PC No. 36/19 Manish Joshi vs state Page 14 of 4440. Sh Raju Junior MRO from the Maharaja Agarsen Hospital appeared in witness box as RW-2 and deposed that the medical record pertains to the deceased have been destroyed as per the policy of the hospital. He has proved the retention policy as Ex. RW-2/A. FINAL ARGUMENTS
41. I have heard ld. Counsel for the petitioner and ld. counsel for the respondent no.2 and have perused the entire record including pleadings, documents, and testimony of the witnesses examined in the court from the both sides and also considered the written submissions as well as judgments relied upon by both the parties.
42. CONTENTIONS OF THE PETITIONER.
1. Ld. Counsel for the petitioner argued that the respondent no.2 purposely dragged the petitioner in the corridor of the court despite knowing that there was a registered Will. The petitioner has much before the start of litigation, has approached the MCD for the mutation of the property in question and in which as a procedure the respondent no. 2 was duly served.
2. Ld. Counsel for the petitioner further argued that in the Will dated 18.11.2014 though no reason as to why the deceased has debarred his only daughter from the property PC No. 36/19 Manish Joshi vs state Page 15 of 44 in question, has been mentioned but respondent no. 2 herself brought on record the reason for debarring her from the property in question, by the deceased by way of executing the Will in question.
3. Ld. Counsel for the petitioner further argued that the relations of respondent no. 2 with her parents were sour. It is further argued that respondent no.2 have solemnized love marriage beyond the cast and without consent of parents and after marriage of respondent no.2, her relations with her parents went much sour.
4. Ld. Counsel for the petitioner further argued that respondent no. 2 has placed on record one document Ex. DW-1/C to prove that she had cordial relation with her father and her father sent her the message of happy birthday on 4.12.2012, however her actual date of birth is 14.07.1972 and the factual position is that respondent no. 2 herself does not remember her date of birth.
5. It is further argued by ld counsel for the petitioner that respondent no. 2 has not called Dr. Dheeraj as a witness to prove whether the deceased was suffering from any such disease whereas she herself deposed that she met with her father last time 15 days before his death and he never admitted her father to any hospital for any treatment except one day before the day of his death to Maharaja Agrasen Hospital and she failed to prove any of the mental incapacity of the testator/the deceased.
PC No. 36/19 Manish Joshi vs state Page 16 of 446. It is further submitted/argued that the petitioner has duly proved the Will, by examining one of the attesting witnesses namely Sh. Mahesh Kumar/PW2 in court and the said witness...
7. He further argued that respondent no.2 never cared her parents during their life-time and used to fight with them.
8. Ld. Counsel for the petitioner further argued that the petitioner has successfully discharged his onus by proving the due execution of the Will and there is no suspicious circumstances surrounding the Will in question.
9. Ld. Counsel for the petitioner further argued the respondent no.2 has miserably failed to prove that the deceased was not in sound disposing mind at the time of execution of the Will and the deceased was coerced to enter into Will by the petitioner.
10.Ld. Counsel for the petitioner further argued that there is no need to examine another attesting witness of the Will. He further argued that as per section 68 of Indian Evidence Act, one attesting witness is sufficient to prove the Will.
11.Ld. Counsel for the petitioner has relied upon the following judgments: -
1. Pashupati Nath Dass (dead) Vs Chanchal Kumar Dass (dead) by LRs & Ors, 2019 (1) CLJ, 262 (SC).
2. Jagdish Chand Sharma Vs Narayan Singh Saini (dead) PC No. 36/19 Manish Joshi vs state Page 17 of 44 through his LRs & Ors, IV ( 2015) SLT, 353.
3. Sujata Kohli Vs State & ors, 2019 (2) CLJ, 738 (Del).
4. Naveen Bhatia (since deceased) through his LRs Vs Raj Kumari Bhatia & ors, 2017 (4) CLJ, 86 (Del).
43. CONTENTIONS OF RESPONDENT NO.2.
1. Ld. Counsel for respondent no.2 argued that the petitioner has played an active role in the execution of the Will and he is major beneficiary in the Will.
2. Ld. Counsel for respondent no.2 further argued that there was no valid reason for non-inclusion of respondent no. 2, daughter of testator in the Will. There is a serious gap in the Will.
3. It is further argued that contrary to section 101 and 102 of the Indian Evidence Act 1872, the petitioner has failed to bring on record any witness or documentary evidence to substantiate his statement about behaviour of respondent no. 2.
4. It is further argued that respondent no. 2 is also equally shareholder of the estate of her late father as her deceased father was anxious about her welfare during his lifetime.
5. It is further argued that the manner of writing and execution of the Will with technical and legal words was PC No. 36/19 Manish Joshi vs state Page 18 of 44 not that of the testator. The alleged Will is being given heading that 'Family Will' and the second last paragraph of the Will creates a strong doubt in the mind that, "Till the Testator is alive he Will remain the absolute owner of the said property and after the death of the Testator, the executor/or their legal heirs shall be the owner of the said property".
6. It is further argued that as per the Will, the name and identity of the person who explained the Will in vernacular language to the deceased has not been mentioned in the Will nor the petitioner adduced any evidence to this regard.
7. Ld. Counsel for respondent no.2 further argued that the respondent no. 2 is also challenging the Will on the ground that it is inconceivable that her father would without force and coercion, execute the Will dated 18.11.2014.
8. He further argued that father of respondent no.2 was suffering from Alzheimer ( complete memory loss) since July 2013 and to keep him calm, the petitioner used to give him sleeping pills very often till his death. Ld. Counsel for respondent no.2 further argued that deceased was not in sound disposing mind at the time of execution of Will.
9. Ld. Counsel for the respondent no.2 further argued that PC No. 36/19 Manish Joshi vs state Page 19 of 44 petitioner has failed to prove the due execution of the Will. He further argued that it is the duty of the petitioner to examine both attesting witnesses of the Will in court but he has mala fidely not examined the another witness of the Will as Will was never executed by his father voluntarily with his free will.
10. Ld. Counsel for respondent no.2 further argued that the present petition is barred by severe delay and laches and deserve to be dismissed as the father of the petitioner died on 14.01.2017 and the petitioner has failed to file the present petition within the period of limitation.
11. Ld. counsel for respondent no. 2 further argued that there are many contradictions in the statements of the attesting witness PW2/Sh. Mahes Kumar.
12. Ld. Counsel for respondent No.2 has relied upon the following Judgments:-
1. Janki Naryan Bhoir Vs Narayan Namdeo Kadam, (2003) 25CC 91, SC
2. H. Venkatachala Iyengar Vs B.N. Thimmajamma, of Hon'ble Apex Court 1958 legal eagle (SC) 143.
3. Jaswant Kaur Vs Amrit Kaur, 1977, SCR, 925.
4. Niranjan Umesh Chandra Joshi Vs Mridula Jyoti Rao:
2007 (1) AD SC 477 and Surinder Pal Vs Saraswati Arora: ( 1974) 2 SCC 600
5. Kavita Kanwar Vs Mrs Pamela Mehta Civil Appeal no.
3688 of 2017.
PC No. 36/19 Manish Joshi vs state Page 20 of 446. Narender Nath Nanda vs State, decided by Hon'ble High Court of Delhi on 01/07/2010.
44. In the present petition, the petitioner is seeking Probate of the Will dated 18.11.2014. In such type of petition, the prime consideration is to find out and assess whether the Will, on the basis of which the petitioner is seeking Probate, has been duly proved or not. Such Will has to be proved in accordance with the provisions contained in Indian Evidence Act as well as Indian Succession Act. In a proceeding for the grant of probate or for the grant of Letters of Administration with a Will annexed, the Court exercising testamentary jurisdiction is not concerned with title of property. In determining whether probate should be granted, the Court determines only upon the genuineness and due execution of the Will. Determinations on issues of title are alien to probate proceedings. Even question whether property existed or not is also not to be considered by the probate court and court is only to see whether Will in question is genuine and validly executed or not.
STATUTORY PROVISIONS INVOLVED IN THE PRESNT CASE.
45. Before adjudicating the issues, I would like to discuss various relevant statutory provisions on the point involved in the present case.
46. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the PC No. 36/19 Manish Joshi vs state Page 21 of 44 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 declares that every person (not being a minor) "of sound mind" may dispose of his property by Will.
47. 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 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".PC No. 36/19 Manish Joshi vs state Page 22 of 44
48. 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 FINDING
49. My issue wise findings are as under:-
Issue no. (1): Whether the deceased Sh. Puran Chandra Joshi executed a valid and enforceable Will dated 18.11.2014 as claimed by the petitioner? OPP
50. The onus to prove issue no. 1 is upon the petitioner and to prove this issue, petitioner has examined himself as PW1 and has examined Sh. Mahesh Kumar as PW2, who is one of the attesting witnesses of the Will in question.
PC No. 36/19 Manish Joshi vs state Page 23 of 4451. PW1 has deposed in his affidavit that his father Late Sh. Puran Chandra Joshi was residing at GH-14/765, Paschim Vihar, New Delhi and the property in question was allotted to the deceased on 07.09.1990 vide allotment letter and thereafter conveyance deed of property in question was executed in favour of the deceased and the allotment letter along with conveyance deed is Ex.PW1/1.
52. PW1 further deposed in his affidavit that it was he only who maintained the love and affection and have given all love and assistance to his father and the same was not done by the respondent no.2 rather she used to quarrel and harassed her father till his last day of life.
53. PW1 further deposed in his affidavit that the property in question along with movable property has been bequeathed to him by his father vide registered Will dated 18.11.2014 and his father died on 14.01.2017 and he proved his death certificate exhibit PW1/3.
54. PW-1 further deposed that because of the irresponsible and ill-mannered behaviour of the respondent no. 2, not only with his father and mother but also with the petitioner, besides the other persons of contacts and relations, Late Sh. Puran Chand Joshi was anxious about the future of both of their son and daughter, he had given ample money, jewelery and valuable gifts to the respondent no. 2 as a traditional father in order to ensure all the wealth and prosperities in the life of the respondent no. 2.
PC No. 36/19 Manish Joshi vs state Page 24 of 4455. PW-1 further deposed in his affidavit that besides the above stated behaviour of the respondent no. 2, she also got married with a person of her own wish, the nature, behaviour and the character of the respondent no.2 and her would be husband was not at par with the moral standard and mind sets of the late Sh. Puran Chandra Joshi. PW-1 furtther deposed that respondent no 2 has received all the love, affection, gifts etc. from her father as a lovely and obedient daughter could get from her father.
56. PW-1 further deposed in his affidavit that out of love and affection, during his life-time, Sh. Puran Chandra Joshi has executed a duly Registered Will dated 18.11.2014 in favour of the petitioner, thereby bequeathing his all rights and shares in favour of the petitioner in respect of the flat bearing No. GH- 14/765, Paschim Vihar, Delhi. The said Will was duly registered before the Sub-Registrar-IIA, Punjabi Bagh, 8.11.2014. The original Will dated Delhi on 18.11.2014 is exhibited as Ex. PW1/5.
57. It is contended by the petitioner that the Will dated 18.11.2014 is a fabricated document and the signatures of the deceased has been fabricated upon it and the alleged signatures of the deceased on Will are not the signatures of the deceased. PW2 has deposed in his cross examination "that the deceased had signed at points A & B before one Peon of the said office and on the back side of the Will, the deceased had signed in the presence of the Sub-Registrar. He further deposed that deceased had also put his thumb impression in the presence of the Sub-Registrar."
PC No. 36/19 Manish Joshi vs state Page 25 of 44The said testimony has not been disputed by the petitioner. No suggestion denying the signatures of the deceased on the Will has been put to PW2, meaning thereby that the petitioner has not disputed the signatures of the deceased on the Will in question.
58. PW2 has deposed in his affidavit that " That I am one of the witnesses to the last Will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature thereto, and also the testator acknowledged the Writing annexed to the above petition to be his last Will and testament in my presence".
59. For appreciating the testimony of PW1 and PW2, the Will in question has been reproduced as under:-
FAMILY WILL I, Puran Chandra Joshi Son of Iate G.D Joshi Resident of GH- 14/765 Paschim Vihar, New Delhi-87 this 18th day of November 2014, by this last and final Will., I, hereby revoke all my Will made by me earlier.
Life is but short, God knows when it may come to an end. Hence, with my free Will and consent without any outside force or compulsion from others in good health and sound/disposing mind, without any sorts of pressure from anybody, force, undue influence, allurement, threat of any nature, coercion etc., There is no other or former Will was made by me prior to this PC No. 36/19 Manish Joshi vs state Page 26 of 44 date and I hereby revoke, if any, all my Will prior to this date. I am owner of:-
DDA Built up MIG Flat Bearing No.765, on Ground Floor, in Pkt GH-14, Situated at Paschim Vihar, New Delhi-87 and all bank accounts, FDR, Fixed Deposit, Post office accounts, locker, cash etc., and LIC policy No. 1 12847783 (hereinafter called to referred as said property) by virtue of File No.M032(59 ) 90/PV/NP have absolute power of disposal of the same.
I, hereby bequeath that on event of my death, above mentioned property Will devolve upon to my son Shri Manish Joshi Son of Shri Puran Chandra Joshi Resident of GH- 14/765, Paschim Vihar, New Delhi-87 and any other person or other family members Will not be entitled to have any claims, rights, title and interests in the above said properties.
Till the Testator is alive he Will remain the absolute owner of the said property and after the death of the Testator the executor/or their legal heirs shall be the owner of the said property.
The aforesaid wealth, properties are self acquired in which my heirs, successors, family members, or anyone else have no right, title, intęrest or concern of any nature whatsoever and as such I am fully competent to make this Will. This is my last Will in statement in respect of the aforesaid wealth properties, I have executed this Will, voluntarily without any outside pressure and coercion or allurement and in my full senses, good health and sound disposing mind. The contents of this Will have PC No. 36/19 Manish Joshi vs state Page 27 of 44 been fully explained to me vernacular in and I admit and understand the same as correct.
IN WITNESS WHEREOF I executed this Will in the presence of the following witnesses on this day this 18th day of November 2014.
WITŅESSES:-
1.Ram Singh Slo Gopal Singh R/o GH-14/763, Paschim Vihar New Delhi-87 Aadhar Card No.220883466098 TESTATOR
2. Mahesh Kumar S/o Ram Kishor Rlo GH-9/407, Paschim Vihar New Delhi-87 Aadhar Card No.345432609172
60. From the appearance of Will, it is established that there are signatures of two witnesses as attesting witness. The Will in question is registered Will. Petitioner has examined one of the attesting witness to prove the Will as per section 68 of Indian Evidence Act.
61. As per section 68 of Indian evidence Act one attesting PC No. 36/19 Manish Joshi vs state Page 28 of 44 witness is required to prove the due execution of Will. In other words if one attesting witness proves the due execution of Will then there is no need to call second attesting witness of the Will. In this case the petitioner has examined only one attesting witness of the Will. Now the question is whether the said attesting witness has proved the due execution of the Will as per section 63 of Indian succession Act and 68 of Indian evidence act.
62. The Hon'ble Apex Court in a case titled as Janki Narayan Bhoir Vs Narayn Namdeo Kadam, JT 2002 (10) SC 340 has discussed the provisions of section 63 of Indian succession Act and Section 68 of Indian evidence act for proving due execution of Will by the testator as follows:-
"On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act."
" In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section
63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to PC No. 36/19 Manish Joshi vs state Page 29 of 44 supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there Will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
" Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the Will by the second witness, the evidence of the witness called falls short to the mandatory requirements of Section 68."
63. 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 in order 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 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 PC No. 36/19 Manish Joshi vs state Page 30 of 44 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.
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 suspicions 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. 63.1 In view of the above said statutory provisions as well as the above said judgment of the Hon'ble Apex Court, it is obligatory for any propounder of the Will to prove the following essentials:
(i) That the Will in question is a legal declaration of the intention of the deceased:
(ii) That the testator while executing the Will was in the sound and disposing state of mind:PC No. 36/19 Manish Joshi vs state Page 31 of 44
(iii) That the testator has executed the Will of his own free Will meaning thereby that he was a free agent when he executed the Will:
(iv) That the propounder has also to remove all the suspicious circumstances, if any surrounding the Will to the satisfaction of the conscious of the Court:
(v) For proving the Will, one attesting witness of the Will must be examined in the Court.
64. In a judgment titled Dhani Ram (D) Thr. Lrs. vs Shiv Singh on 6 October, 2023, 2023 Live Law (SC) 862, Hon'ble Apex court has relied upon its earlier judgements titled Janki Narayan Bhoir vs. Narayan Namdeo Kadam ( supra )and in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others, and again held that to prove that a Will has been executed, the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act have to be complied with as fellows:
"16. In his cross-examination, Chaman Lal stated that his signatures in Ex. DW-2/A were made on the same day and at the same time. He stated that his signatures on the document were made on 03.11.1987 in the Tehsil. He, however, said that he did not go to the office of the Tehsildar but signed the document and came back from outside the Tehsil. He stated that he did not go inside the Tehsil. He denied that, after making Ex. DW-2/A Will, Leela Devi appeared before the Tehsildar (Sub-Registrar) with him and Lok Nath Attri. He further said that he did not know that Leela Devi signed Ex. DW-2/A in Lok Nath Attri's and his presence after admitting it as correct".
"We may also refer to Janki Narayan Bhoir vs. Narayan Namdeo PC No. 36/19 Manish Joshi vs state Page 32 of 44 Kadam, wherein this Court held that, to prove that a Will has been executed, the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act have to be complied with. It was pointed out that the most important point is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will or must have seen some other person sign the Will in the presence of and by the direction of the testator or must have received from the testator a personal acknowledgment of his signature or mark or of the signature or mark of such other person and each of the witnesses has to sign the Will in the presence of the testator. It was further held that, a person propounding a Will has got to prove that the Will was duly and validly executed and that cannot be done by simply proving that the signature on the Will was that of the testator, as the propounder must also prove that the attestations were made properly, as required by Section 63(c) of the Succession Act. These observations were affirmed and (2003) 2 SCC 91 quoted with approval by this Court in its later judgment in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others 3. 23. Viewed in the context of the legal requirements and the law laid down by this Court, we find that neither of the attesting witnesses in this case fulfilled the mandate of Section 63(c) of the Act of 1925 to prove the Will. Though Lok Nath Attri claimed that Leela Devi affixed her signatures in the Will in their presence, which was vehemently denied by the other attesting witness, Chaman Lal, the fact remains that Lok Nath Attri also did not state that he affixed his signatures in the Will in the presence of Leela Devi. This is one of the compulsory requisites of Section 63(c) of the Succession Act."
"27. On the above analysis, it is manifest that compliance with the essential legal requirements, in terms of Sections 68 and 71 of the Evidence Act and Section 63 of the Succession Act, was not established in order to prove the execution of Ex. DW-2/A Will. As Dhani Ram failed to prove the execution of the Will in terms of the mandatory legal requirements, Shiv Singh would be entitled to succeed to the properties by way of intestate succession under Section 15 of the Act of 1956, as rightly held by the Himachal Pradesh High Court".PC No. 36/19 Manish Joshi vs state Page 33 of 44
65. In the present case, the evidence of PW2 by way of affidavit is totally silent about the attestation of Will by second witness. PW2 has not even identified the signature of second attesting witness on the Will. He has not deposed about the fact as to where and when second attesting witness signed the Will or whether he was present at the time of signing the Will by second attesting witness or whether second attesting witness signed the Will in the presence of deceased and whether the deceased signed the Will in the presence of second attesting witness or whether the deceased acknowledged his signature in the presence of second attesting witness and whether he knew the second attesting witness or whether signatures appearing on Will is of the second attesting witness.
66. In the light of above said judgments, it is held that the attesting witness/PW2 has not proved the attestation of Will by second attesting witness and his testimony is falls short to fulfill the mandatory requirements of Section 63 of Indian succession Act and 68 of Indian evidence act. Therefore, PW2 has failed to prove the due execution of Will.
67. There are also some suspicions surrounding the execution of Will and it is the duty of propounder to remove those suspicions.
67.1 The Will in question is completely silent about the daughter of the deceased. Nothing is mentioned in the Will about his daughter by the deceased. No reason has been given in the Will by the deceased for excluding the daughter from his PC No. 36/19 Manish Joshi vs state Page 34 of 44 inheritance.
67.1(a) The petitioner has disclosed the reason for the exclusion of daughter from inheritance by the deceased in the petition as well as in his evidence. The petitioner has deposed that respondent no.2 used to quarrel and harassed the deceased till his last day of life.
67.1(b) It is further deposed by petitioner that the deceased was anxious about the future of both of their son and daughter and had given ample money, jewellery and valuable gifts to respondent no.2 as a traditional father in order to ensure all the wealth and prosperity in the life of respondent no.2.
67.1(c) The third reason for exclusion of respondent no.2 from inheritance is that the respondent no.2 married with a person of her own wish and her would be husband was not at par with the moral standard and mind set of the deceased. The marriage of respondent no.2 was a love marriage and respondent no.2 had married against the Will and consent of her father.
67.1(d) The first reason for exclusion of respondent no. 2 for inheritance is given by the petitioner that respondent no.2 used to quarrel and harassed the deceased and the relations between respondent no.2 and the deceased were strained. The reason for exclusion of respondent no.2 from inheritance due to strained relations with the deceased, have not been mentioned in the Will. The petitioner has not explained why respondent no.2 used to quarrel with the deceased and what things she demanded from PC No. 36/19 Manish Joshi vs state Page 35 of 44 the deceased and what types of quarrel used to take place between them. Whether the quarrel was minor or aggravated. If these quarrels are aggravated then deceased or his family members would have made complaint against deceased to the police, but it is admitted by the petitioner that neither he nor the deceased nor any other family members made any complaint regarding quarrel against respondent no.2. The petitioner has not examined any other witness besides himself to prove the above said fact. There is no oral or documentary evidence on record to corroborate the version of the petitioner that respondent no.2 used to quarrel and harassed the deceased and the relations between respondent no.2 and the deceased were strained. The petitioner also admitted that the respondent no.2 sometimes used to visit her father (the deceased) in order to look after her but he volunteered that she every time quarrel with the deceased. It is also deposed by respondent no.2 that last time she visited her father 15 days before the death of the deceased. In the light of admission of the petitioner, this fact has been proved that Respondent no.2 sometimes used to visit her father (the deceased) in order to look after him. It is not disputed by petitioner that that last time respondent no.2 visited her father 15 days before the death of the deceased. If there were strained relations between the deceased and respondent no.2, then she would not have used to visit her father in order to look after the deceased. In view of the above said facts and testimony, the petitioner failed to prove that there were strained relations between the deceased and respondent no.2.
67.1(e) The second ground of strained relations between the PC No. 36/19 Manish Joshi vs state Page 36 of 44 deceased and respondent no.2, taken by the petitioner is that the respondent no.2 married with a person against the Will and consent of her father and her husband was not at par with the moral standard and mind set of the deceased. If the respondent no.2 had married against the wish and Will of the deceased and the deceased did not like the husband of respondent no.2, then the deceased would not have participated in the marriage of respondent no.2. it is admitted by the petitioner that he, his father and mother attended the marriage of respondent no.2. It is deposed by RW1 that her father did her kanyadaan and this fact is not disputed by the petitioner during cross examination of DW-
1. Therefore, the petitioner has failed to prove the fact that there were strained relations between the deceased and respondent no.
2. 67.1(f) The another reason taken by the petitioner for exclusion of respondent no. 2 from inheritance is that the deceased had given ample money, jewelery and valuable gifts to respondent no.2 as a traditional father in order to ensure all the wealth and prosperity in the life of respondent no.2. It is admitted by petitioner that the marriage of respondent no.2 was held at Arya Samaj Mandir and it was a simple marriage. So it is proved that on the marriage of respondent no.2, no much amount was spent by the deceased. The petitioner has not led any oral evidence or placed any documentary evidence to prove above said fact. Even no bill of purchasing jewelery or other valuable articles has been placed on record by the petitioner.
67.2 There are contradictions in the Will which creates doubts PC No. 36/19 Manish Joshi vs state Page 37 of 44 of the due execution of Will by the deceased and these are as follows:-.
I, hereby bequeath that on event of my death, above mentioned property Will devolve upon to my son Shri Manish Joshi Son of Shri Puran Chandra Joshi Resident of GH- 14/765, Paschim Vihar, New Delhi-87 and any other person or other family members Will not be entitled to have any claims, rights, title and interests in the above said properties.
Till the Testator is alive he Will remain the absolute owner of the said property and after the death of the Testator the executor/or their legal heirs shall be the owner of the said property.
67.2(a) In the first para in the Will, the deceased has bequeathed the property to the petitioner but on next para in the Will, it is mentioned that after the death of the testator, the executor/or their legal heirs shall be the owner of the said property. In the succeeding para, the testator has mentioned that the property Will devolve upon executor/ or their legal heirs. The term their heirs is also vague and it is not clear whether these legal heirs are legal heirs of executor or of the testator. The word, there, used is also in plural form. In the Will no executor has been appointed by the deceased. So the terms of the Will are vague and unascertainable in respect of devolution of property.
67.3 In his cross examination, PW-2 deposed that he know the deceased for the last several years but he did not know where deceased was doing service, when wife of the deceased was expired and he also did not remember the date and year of PC No. 36/19 Manish Joshi vs state Page 38 of 44 retirement of the deceased.
67.4 DW-1 deposed in his affidavit that her father was suffering from Alzheimer (complete memory loss) since July 2013 and to keep him calm, the petitioner used to give him sleeping pills continuously till his death. DW-1 further deposed in her affidavit that with the passage of time, serious mental illness coupled with heart ailment aggravated the health condition of her father and her father became terminally ill. DW-1 further deposed that since 2013 onwards, her father was having week memory power, his capacity to think, took any independent decision, weigh the pros and cons of any act or to do anything after knowing the pros and cons of any act or to do anything after knowing and understanding the purport and consequences of the same had deteriorated. DW-1 further deposed that her father was not having sound disposing mind on and around 18.11.2014. DW-1 further deposed that her father was not having sound disposing mind, capacity to think rationally since 2012. No cross examination has been done by the petitioner on above said deposition of DW1 regarding not having sound disposing state of mind by deceased at the time of execution of Will. The only suggestion to the above aspect given by petitioner to DW-1 is that her father was completely healthy till about 15 days prior to his death. The evidence of DW1 on the above aspects has remained unrebutted and unchallenged. Meaning thereby that the petitioner has not disputed the above said facts regarding mental incapacity of the deceased at the time of execution of Will, reliance is placed upon the judgments given by Hon'ble Apex Court in cases titled as Muddasani Venkata Narsaiah v.
PC No. 36/19 Manish Joshi vs state Page 39 of 44Muddasani Sarojana, AIR 2016 SC 2250 and Arvind Singh v. State of Maharashtra, AIR 2020 SC 2451.
67.4 (a) 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-examination 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 substance not of procedure one is required to put one's own version in cross-examination of opponent. The effect of non cross-examination is that the statement of witness has not been disputed".
67.4 (b) 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 138 of 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:PC No. 36/19 Manish Joshi vs state Page 40 of 44
(1) 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."
67.5 In his cross-examination, PW-2 deposed that he does not know whether the deceased had dictated or given instructions to the said typist for preparing the Will. PW2 even did not remember the date when the Will was drafted. PW2 has not deposed in his examination that the Will in question was read over to the deceased or the deceased had read the Will before signing the Will. PW2 has not deposed that the deceased was aware of the contents of Will at the time of signing the Will. He deposed in his cross examination that it is correct that the Sub- Registrar had not stated the contents of the Will at the time of its registration. Therefore, it is not proved that the Will was typed as per the instructions of the deceased or deceased was aware of the contents of the Will at the time of signing the Will. It is also not proved on what date the Will was drafted.
68. In a case titled as Savithri & Ors Vs Karthyayani Amma & Others, AIR 2008 SC 300 decided on 12/10/2007, Hon'ble Apex Court observed that :-
60."We may however notice that according to the appellants themselves, the signature of the testator on the Will was obtained under undue influence or coercion. The onus to prove the same was on them. They have failed to do so if the propounder proves that the Will was signed by the testator and he at the relevant time was in sound disposing state of mind and understand the nature and effect of disposition, the onus stands discharged".PC No. 36/19 Manish Joshi vs state Page 41 of 44
69. In a judgment titled Meena Pradhan & Ors. vs Kamla Pradhan & Anr.( supra), Hon'ble Apex Court deduced the following principle for deciding validity and genuineness of Will :-
"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:"
70. In a judgment titled as Dhani Ram (D) Thr. Lrs. vs Shiv Singh , 2023 Live Law (SC) 862, Hon'ble Apex court held that mere registration of a Will does not prove its due execution, the propounder has to prove it and has to dispel all suspicions surrounding the execution of Will.
"It is well settled that mere registration would not sanctify a document by attaching to it an irrebuttable presumption of genuineness. The observations of this Court in Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another 1, which were referred to by the Himachal Pradesh High Court, are of guidance in this regard and are worthy of extraction. These observations read as under: "There is no doubt that if a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration Will dispel the doubt as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not PC No. 36/19 Manish Joshi vs state Page 42 of 44 unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered Wills have not been acted upon. Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and AIR 1962 SC 567 = [1962] 3 SCR 195 attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the Will being genuine if the evidence as to registration establishes that the testator admitted the execution of the Will after knowing that it was a Will the execution of which he was admitting."
71. In the light of above judgments of Hon'ble Apex court, the initial burden is upon the propounder to dispel all the suspicions surrounding the execution of Will and also to prove that the testator was aware of the contents of Will at the time of signing it. But in this case the petitioner failed to dispel above said suspicions surrounding the Will and also failed to prove that the deceased was aware of the contents of Will at the time of signing it.
72. Therefore, in view of my foregoing discussion, I hold that petitioner has failed to prove the due execution of Will Ex.PW1/5 and dispel the suspicions surrounding the execution of Will, hence Will Ex.PW1/5 is not valid, legal and genuine Will and it has not been executed validly and is unenforceable. Accordingly, issue no.1 is decided against the petitioner and in favour of respondent no.2.
73. Finding on Issue No.3 Issue No. 3: Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 in the reply/objections? OPR.
In view of the above said observations and findings given on issue no.1, accordingly issue no.3 is decided in favour of the PC No. 36/19 Manish Joshi vs state Page 43 of 44 respondent no.2 and against the petitioner.
74. Finding on Issue no.2 Issue no. 2: Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP Burden of proof of issue No. 2 is upon the petitioner. Since the petitioner has failed to prove that the Will in question is valid and enforceable Will, the issue no.2 is decided against the petitioner and in favour of respondent no.2.
75 RELIEF In view of above discussions and findings, on issue no. 1, 2 and 3 being against the petitioner and in favour of the respondent no. 2, consequently, the petition of the petitioner is dismissed without cost.
File be consigned to the Record Room after making all the necessary compliance and due formalities.
Digitally signed SHIV by SHIV KUMAR
Date:
KUMAR 2023.12.18
00:37:15 +0530
Announced in the open court (Shiv Kumar )
On 18-12-2023 Addl. District Judge-02
Tis Hazari Courts/Delhi.
PC No. 36/19 Manish Joshi vs state Page 44 of 44