Delhi District Court
Chaman Prakash vs . State Of Delhi & 15 Ors. Pc/La No. 24/12 on 12 February, 2014
Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12
In the court of Additional District Judge-02, South, Delhi, Room no. 602, Sixth
Floor, Saket Court Complex, New Delhi
PC/ LA No. 24/12
Shri Chaman Prakash, S/o Late Chander Bhan,
R/o 96, Bhagwan Nagar/ Jeevan Nagar,
New Delhi-110014. ...Petitioner
VERSUS
1. State of Delhi
2. Smt. Lajwanti, W/o Late Sohan Ram,
R/o H.No. B-1340, Gali No. 2,
Sangam Vihar, New Delhi-110062.
3. Shri Vikram, S/o Late Sohan Ram,
R/o H.No. B-1340, Gali No. 2,
Sangam Vihar, New Delhi-110062.
4. Shri Amar Nath, S/o Late Sohan Ram
R/o H.No. B-1340, Gali No. 2,
Sangam Vihar, New Delhi-110062.
5. Shri Bhupinder, S/o Late Sohan Ram,
R/o 746, Block No. 3, Near Virat Cinema,
Dakshinpuri, New Delhi.
6. Shri Narender, S/o Late Sohan Ram,
R/o 96, Bhagwan Nagar/ Jeevan Nagar,
New Delhi-110014.
1/16
Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12
7. Shri Bharat Singh, S/o Late Chander Bhan,
R/o 96, Bhagwan Nagar/ Jeevan Nagar,
New Delhi-110014.
8. Shri Surat Singh, S/o Late Chander Bhan,
R/o 96, Bhagwan Nagar/ Jeevan Nagar,
New Delhi-110014.
9. Shri Naresh Kumar, S/o Late Chander Bhan,
R/o 96, Bhagwan Nagar/ Jeevan Nagar,
New Delhi-110014.
10.Smt. Sushma, W/o Late Sher Singh
R/o 96, Bhagwan Nagar/ Jeevan Nagar,
New Delhi-110014.
11.Shri Yogesh, S/o Late Sher Singh
R/o 96, Bhagwan Nagar/ Jeevan Nagar,
New Delhi-110014.
12.Smt. Punam, D/o Late Sher Singh,
R/o 96, Bhagwan Nagar/ Jeevan Nagar,
New Delhi-110014.
13.Smt. Rukmani, D/o Late Sher Singh
R/o 96, Bhagwan Nagar/ Jeevan Nagar,
New Delhi-110014.
14.Smt. Bimla, D/o Late Chander Bhan,
W/o Shri Chatter Singh,
R/o H.No. 195-A, Gali No. 7,
Sant Nagar, Burari, Delhi-110084.
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Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12
15.Smt. Chaman, D/o Late Chander Bhan,
W/o Shri Laxmi Narayan,
R/o H.No. D-211, Sector-23,
Sanjay Nagar, Near Gopi Halwai,
Ghaziabad (U.P.).
16.Smt. Kamlesh, D/o Late Chander Bhan,
W/o Shri Kishan Chand,
R/o H.No. B-16, D-3, IIT Gate,
Hauz Khas, New Delhi-110016. ...Respondents
Petition presented on : 29.11.2012
Decision reserved on : 01.02.2014
Date of decision : 12.02.2014
JUDGMENT
(on petition U/Ss 217, 276, 283, 289 and 290 of Indian Succession Act, 1925 for grant of probate/ letters of administration with Will dated 30.07.2010 of Smt. Ram Kali) Petitioner's case 1.1 Petitioner Shri Chaman Prakash seeks probate/ letters of administration in his favour on the basis of Will dated 30.07.2010 executed by Smt. Ram Kali in his favour on the ground that she had 1/10th share in H.No. 96, Bhagwan Nagar/Jeevan Nagar, New Delhi-110014 (hereinafter referred as "the property"
or "the estate") and Smt. Ram Kali during her lifetime executed her last Will dated 30.07.2010 (now Ex. PW-1/1) in the presence of attesting witnesses (namely Shri Narender (now PW-1) and Shri Prem Chand) in respect of the property and also in respect of amount in her saving bank account No. 3/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 66000164876, maintained with State Bank of India, Siddharth Extension Branch, New Delhi-110014 (in brief "saving account amount", now Mark A). Smt. Ram Kali had inherited the property after death of her husband Shri Chander Bhan, who died in the year 1985.
1.2 Smt. Ram Kali executed the Will in favour of petitioner during her lifetime out of great love and affection to the petitioner. The petitioner had spent a lot of amount on the treatment of his mother. She died and petitioner provided funds for performance of necessary funeral rites etc. She died at Delhi, being permanent resident of Delhi. The petitioner is entitled for probate/ letters of administration with annexed Will. However, the legal heirs of deceased Chander Bhan have filed suit for partition, it is pending in the court of Additional District Judge, Saket, Delhi, wherein Smt. Ram Kali was impleaded as defendant no. 1 and the present petitioner as defendant no. 4.
1.3 The petition is signed and verified by the petitioner besides by an attesting witness Shri Narender.
Respondents' case 2.1 (The State) - A proclamation was published of citation in "The Statesman" dated 27.12.2012 as well as at the conspicuous place at Saket Court Complex, inviting the general public to come and make their submission either 4/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 in support or otherwise in the form of objections, however, no one from the public came forward to file the objections.
2.2 (status of respondent 3, 4, 10 to 13) - The respondent no. 3, 4, 10 to 13 are grand-children of deceased Chander Bhan and Smt. Ram Kali, from their two deceased sons, however despite service of notice on petition, they failed to appear and contest the same, consequently by order dated 04.04.2013 they were proceeded ex-parte.
2.3 (plea of respondents 2, 5, 6, 8, 14 to 16) - The respondents 6 (grand son of deceased), 14 to 16 (daughters of deceased) appeared in the court, they filed their joint reply besides their statement on oath on 04.04.2013 and another respondent no. 8 (son of deceased) filed his separate reply, they admitted the claim of petitioner. They have not disputed any fact nor denied anything mentioned in the petition. The other respondents 2 (daughter-in-law of deceased) & 5 (grandson of deceased) also gave their statement being no objection for grant of probate/ letters of administration.
2.4 (plea of respondent no. 7 & 9) - First of all the respondent no. 7 filed his reply alike respondent no. 6, 8, 14 to 16, he had not denied or disputed the petition. However, subsequently respondent no. 7 & 9 (both son of deceased) filed their written statement/ objections, they opposed the petition. The 5/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 respondent no. 7 has also explained that petitioner had obtained his signature on certain papers which were in English language, which respondent no. 7 does not understand nor its contents were explained to him but the same has been utilized as a reply to the petition, consequently he requested to consider his written statement filed with respondent no. 9 as opposed to the petition.
Respondent no. 7 & 9 opposed the petition, on various grounds, like verification to the petition is not as per law, nor the present court has pecuniary jurisdiction as the value of property is approximately Rs. 2 crore but the petitioner has valued it as Rs. 2,65,113/-. The Will dated 30.07.2010 is manufactured, fabricated and a procured Will. The petitioner seems to have obtained thumb impression of Smt. Ram Kali fraudulently, mischievously and without her knowledge, while she was in unconscious state, as Smt. Ram Kali was ailing and undergoing treatment in ICU of Jeevan Hospital and Nursing Home Pvt. Ltd. from 18.07.2010 to 03.08.2010 (now Mark B). She was not in a fit mental and physical state to execute Will in question nor she was in state of mind to apprehend the import of contents of the Will. The said Will is under serious doubts, particularly she along with other family members inclusive of respondent no. 7 & 9 had entered into an agreement to sell dated 12.09.2010 for selling her 1/10th share to Shri Anil Saini, an earnest amount of Rs. 3 lakhs was also received by her, how she could enter into agreement to sell, had there been an execution of Will by her. Although the said agreement to sell has vanished either by notice dated 29.01.2011 or of other legal consequences, which are not 6/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 material in the present petition.
Smt. Ram Kali was in ICU Ward of hospital, it was under close scrutiny of entry, how it was feasible for entry of more than one person during day hours, the Will is doubtful and attesting witnesses are total stranger, since nobody from the family is a attesting witness. Moreover, respondent no. 9 Naresh Kumar is a nominee in the saving bank account of deceased, had there been existence of Will it would have been brought to the notice of Bank for substitution of name of nominee. The written statement further denies all other allegations with a submission to dismiss the petition.
2.5 Whereas the petitioner reiterate the contentions of petition as correct, while denying the allegations of written statement either on the point of allegations of suspicion of execution of Will or that the signatures were obtained during unconsciousness of Smt. Ram Kali. It is reiterated that she was in a fit and physical state of mind, a video CD was also prepared, which authenticate that she was conscious not only of preparing the video CD but also that she was desirous of making Will. So far agreement to sell is concerned, it is not barred in the eventuality a Will is executed. Nomination in the bank account does not bar from writing the Will. The petition is as per law.
Issues
3. On 16.05.2013, from the pleadings of petitioner and the respondent no. 7 7/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 & 9, the Ld. Predecessor framed the following issues for determination:
(1) Whether Will dated 30.07.2010 executed by Late Smt. Ram Kali is validly and legally executed? OPP (2) Whether petitioner is entitled for grant of probate in respect of Will dated 30.07.2010? OPP (3) Whether the objections filed on behalf of respondent no. 7 and 9 are valid and maintainable? OPR (4) Relief.
Evidence 4.1 In order to prove the case, the petitioner got examined four witnesses namely PW-1 Shri Narender (an attesting witness to the Will), PW-2 Shri Puneet Kumar (who prepared the video CD (Mark A)), PW-3 Shri Satish Sharma, Advocate (who authored/ reduced the Will in manuscript) and Petitioner/ PW-4 Chaman Prakash and then petitioner's evidence was closed.
4.2 In order to establish the case of respondent no. 7 & 9, they got examined themselves as RW-1 Shri Naresh Kumar (to prove the facts narrated in reply vis-a-vis the Will was forged document) and RW-2 Shri Bhagat Singh (to prove the facts, alike RW-1 as well as papers were got signed by him by the petitioner under misrepresentation), then they closed the evidence.
Final arguments 5 Shri Abdul Kalam, Advocate for petitioner and Shri Praveen Kumar, 8/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 Advocate for respondent no. 7 & 9 advanced the arguments finally. However their contentions will be referred and discussed appropriately, in order to avoid repetition, while adjudicating issues.
Findings 6.1 The rival contentions are assessed. Considering the nature of issues framed, issue no. 1 & 3 are being taken together.
(1) Whether Will dated 30.07.2010 executed by Late Smt. Ram Kali is validly and legally executed? OPP (3) Whether the objections filed on behalf of respondent no. 7 and 9 are valid and maintainable? OPR The onus to prove issue no. 1 is on petitioner and onus to prove issue no.
3 is on respondents 7 & 9. There are few legal objections by the respondent no. 7 & 9 either with regard to verification appended with the petition or with regard to pecuniary valuation of petition. Whereas by comparing the verification to the petition with the specimen verification prescribed in section 280 of The Indian Succession Act, 1925 (in brief Act, 1925), the verification on the petition is as per law. Another issue is with regard to pecuniary jurisdiction of the court whereas section 270 of the Act read with section 268 of the Act, 1925 talks about jurisdiction of the court, where either the deceased had fixed place of abode at the time of death or the property is located within the jurisdiction of court. Neither section 270 nor 268 of the Act, 1925 talks about 9/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 pecuniary valuation of petition for the purposes of jurisdiction but the other facts, enumerated herein-before, are determinant of jurisdiction. Since the property is situated and the deceased had also place of abode within the jurisdiction of this court, the present court has jurisdiction to decide the lis. The third allied issue is with regard to nomination to the bank account. It is settled law that nomination to bank account is not a Will nor nomination to bank account bar the testator or testatrix to write Will; the nomination to bank account facilitate that nominated person may receive the amount and it may be distributed amongst the persons actually entitled, although it may happen that nominated person may be beneficiary. With this conclusion, now the formal issues are taken.
6.2 According to petitioner, Smt. Ram Kali was undergoing treatment of pneumonia and gastric problem at Jeevan Hospital and Nursing Home Pvt. Ltd., she was shifted to general Ward and she executed her last Will and testament, which was reduced into writing by PW-3 Shri Satish Sharma, Advocate in his writing, PW-2 Shri Puneet Kumar prepared video CD (Mark A), which clearly demonstrate that Smt. Ram Kali was in her sound health and in sound state of mind, she executed the Will and put her thumb impression knowing all circumstances, which was of her own volition to bequeath the property and saving account amount in favour of petitioner/ PW-4 Chaman Prakash. PW-1 Shri Narender and PW-4 petitioner/ Chaman Prakash are attesting witness and 10/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 the Will has been proved. The respondents 7 & 9 took the objection that there was an agreement to sell or it shows conduct of Smt. Ram Kali that after execution of Will one cannot enter into agreement to sell, whereas there is no legal bar to enter into agreement to sell after execution of Will, as Will operates after death. The Will was also Notarized on 31.07.2010 but respondents are construing the things otherwise but it does not give any benefit to them, since attesting witnesses have established the Will. The requirement of law is that attesting witnesses should have seen the testator signing or affixing his mark to the Will, PW-1 and PW-4 have seen Smt. Ram Kali marking her Will in their presence, reliance is placed on Deepika Hingorani vs. State 2013 (4) CLJ 419 Delhi. There is also no bar that beneficiary may be a witness to the Will, reliance is placed on Anand Burman vs. State 2012 (3) CLJ 652 Delhi, as requirement of section 68 of the Act are fulfilled.
6.3 Whereas the respondents 7 & 9 opposed the request that Smt. Ram Kali was undergoing treatment at the said hospital, she remained in ICU, where more than one person is not permitted to stay and consequently the episode of preparing video CD or the like is not believable; otherwise there is transcript version (Ex. PW-2/R1) of CD, on its plain reading it can be deciphered from portion X to X that Smt. Ram Kali was under some pressure and this kind of Will cannot be believed as it is not free from suspicion. The petitioner's witnesses have also given contradictory and inconsistent versions like the Will 11/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 alleged is of 30.07.2010 but it was Notarized on 31.07.2010, however it is not known to the witnesses as to when they had signed; how the version can be believed. The respondent no. 9/ RW-1 has tendered certificate Mark B issued by Jeevan Hospital & Nursing Home Pvt. Ltd. that Smt. Ram Kali remained in ICU unit from 18.07.2010 to 03.08.2010, how it could be believed that she was of sound health or mind or of normal state of health [Ld. Counsel for petitioner requests that she was admitted in ICU unit from 18.07.2010 to 25.07.2010 and she was shifted to Ward on 26.07.2010 and was discharged on 03.08.2010, there was clerical mistake in certificate Mark A that is why another certificate was issued by Jeevan Hospital & Nursing Home Pvt. Ltd. which is matter of record. However Ld. Counsel for respondents 7 & 9 request that this second certificate has not been proved as per law but petitioner has again counter submission that Mark A has also not been proved as per law.] The respondent submits that for want of proof of Will as per law as well as that Smt. Ram Kali was of sound health and mind, the respondent has succeeded to establish issue no. 3 but petitioner failed to prove issue no. 1 consequently the petition is liable to be dismissed.
6.4 The submission of both sides have been enumerated in detail. The essential characteristic of Will are (i) There must be legal declaration, (ii) The declaration must be with respect to property of the testator or testatrix which he/ she want to dispose off, (iii) The declaration must be to the fact that it is to 12/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 operate after death of testator/ testatrix. In order to prove the Will as per law it is to be establish (a) the propounder has to show that the Will was signed by testator; (b) that he was, at the relevant time, in a sound disposing state of mind;
(c) he understood the nature and effect of disposition; (d) that he put his signature at the testament of his own free will and he has signed in the presence of two witnesses who attested it in his presence or the presence of each other or as per section 68 of the Act, 1925 and (e) the witness must be examined to prove attestation and execution of Will.
By applying the law on Will to the facts of the case, it is held that petitioner has succeeded to prove issue no. 1 in his favour but respondent no. 7 & 9 could not prove issue no. 3 in their favour for the following reasons: -
(i) By reading the entire evidence there is no dispute that Smt. Ram Kali had 1/10th share in the property and she was maintaining saving bank account, she could execute the Will in respect of such immovable property and bank account amount.
(ii) She was undergoing treatment at Jeevan Hospital & Nursing Home Pvt.
Ltd., the audio video CD (Mark A) reflects photography of Smt. Ram Kali and transcript portion (Ex. PW-2/R1) is transcription of audio version. So far portion X to X on Ex. PW-2/R1 is concerned, the respondent 7 & 9 are construing as a pressure but the petitioner has normal reply and showing affection towards the petitioner, the circumstances are leaning towards petitioner by considering transcript version along with the photography of Smt. 13/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 Ram Kali.
(iii) Witness PW-1 (Narender) is an attesting witness, he has clearly narrated in his examination in chief read with his affidavit (Ex. PW-1/A) that Smt. Ram Kali put her thumb impression in his presence and similar version has also been deposed by petitioner/ PW-4, nowhere in the entire cross-examination of PW-1 or PW-4 it was put to the witnesses that she had not put her thumb impression in their presence.
(iv) Respondent no. 7 & 9 took the stand that Smt. Ram Kali was unconscious or her thumb impression was obtained in that state of affair but there is no evidence led by them to suggest that she was unconscious at any point of time while undergoing treatment at Jeevan Hospital & Nursing Home Pvt. Ltd. From certificate (Mark A) that she was admitted in the hospital would not conclude itself that she was unconscious or she was not in a fit mental state of affair; to say there is no medical record or evidence which infer that she was not fit mentally or physically.
(v) It would not give any benefit to respondent no. 7 & 9 that the Will was notarized on 31.07.2010 as notarization of Will does not mean that a Notary Public becomes an attesting witness. The attesting witness was PW-1 and PW-4, there is nothing cull out from their examination that Will was not endorsed by them as a attesting witness.
(vi) The Will is in respect of "the property" as well as "saving account amount" (Mark A) and it satisfies the essential requirement of Will.
14/16Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 6.6 From conclusions (i) to (vi) above establish that petitioner has proved the Will (Ex. PW-1/1) as per law in respect of estate of the deceased and bank account amount and Will was executed by Smt. Ram Kali.
7. Issue no. 2 - Whether petitioner is entitled for grant of probate in respect of Will dated 30.07.2010? OPP In view of the finding given on issue no. 1 and 3 above, petitioner is held entitled for grant of letters of administration in respect of Will dated 30.07.2010, since petitioner has succeeded to establish petition in his favour.
8. Issue no. 4 - Relief In view of the findings given on issue no. 1, 2 & 3 above, petitioner is held entitled for letters of administration with Will dated 30.07.2010 (Ex. PW-1/1) annexed in his favour.
9. However, grant of letters of administration with Will annexed would not determine either the title, specific share or share or other claim of the petitioner in estate of the deceased or saving account amount. With this observation the petition stands disposed off.
10. The valuation report was received in respect of the entire property, for which the estate of deceased forming part thereof, whereas the petitioner is yet 15/16 Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12 to file proper stamp/ fee, the petitioner is directed to file ad-valorem the proper court fee/ stamp fee in respect of "the property" and "saving account amount" (Mark A). Petitioner is also required to furnish administration bond and surety bond as per rule.
File is consigned to record room.
Announced in the open Court. (Inder Jeet Singh)
23rd Magha, SAKA 1935 Addl. District Judge-02,
South, Saket, New Delhi.
12.02.2014/ MC
16/16
Chaman Prakash vs. State of Delhi & 15 Ors. PC/LA No. 24/12
12.02.2014
Present : Shri Abdul Kalam, counsel for petitioner with petitioner.
Shri Shakeel Ahmed, counsel for respondent 2, 5, 6, 8, 14 to 16 (they have already filed their no objection/ statement).
Respondent no. 3, 4, 10 to 13 are ex-parte.
Proxy counsel for respondent no. 7 & 9.
Vide separate judgment announced today, petitioner's petition for letters of administration with Will annexed (Ex. PW-1/1) is allowed. However, petitioner is required to furnish ad-valorem stamp/ court fee in respect of "the property/ estate of deceased", as per Will and on "saving account amount"
within one month. He is also required to furnish administration bond and surety bond as per rule.
Shri Rajender Kumar, Reader attached to the court will also calculate proper court fee payable and report.
File is consigned to record room.
(Inder Jeet Singh) ADJ-02 (South), Saket, New Delhi.
12.02.2014/ MC 17/16