Delhi High Court
Rakesh Kumar Gaur & Ors vs Vipin Gaur on 12 March, 2009
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Sudershan Kumar Misra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 26.02.2009
% Date of decision : 12.03.2009
+ FAO (OS) No.188-190/2005
RAKESH KUMAR GAUR & ORS ...APPELLANTS
Through: Mr.Pradeep Kumat Bakshi with
Mr. Rajat Navet, Advocates.
Versus
VIPIN GAUR ...RESPONDENT
Through: Mr.J.K.Seth, Sr.Adv. with
Ms. Shalini Kapoor and
Mr. Promil Seth, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
SANJAY KISHAN KAUL, J.
1. This appeal has been filed against the judgment dated 06.01.2005 of the learned Single Judge entitling the petitioner, Mr. Vipin Gaur to grant of Letters of Administration in PR No. 59/1983.
2. Smt. Bhagwati Devi Gaur died on 17.1.1981. She was survived by two sons, namely, Satpal and Davinder Pal and two daughters, namely, Radha Rani and Satyawati. FAO(OS) 188-190/2005 Page 1 of 17 Her husband, Jagan Nath Gaur and the third son, Rajwant Pal, who was unmarried, had predeceased her. The disputes relating to the estate left by the deceased, Smt. Bhagwati Devi Gaur, were between the son, Davinder Pal, her grandson Harmesh Pal, s/o Satpal and daughter Radha Rani. During the pendency of the proceedings, Satpal expired on 2.3.1982, Davinder Pal expired on 6.11.1999 and Radha Rani expired on 1.1.1992.
3. On the death of Smt. Bhagwati Devi, a probate petition was filed in the court of the District Judge Delhi, which was registered as Probate Case No. 115/81. The said petition was filed by Shri Sri Ram Sharma, who was the real brother of the deceased and was named as the executor of the Will dated 19.5.1978. The Will was registered with the Sub-Registrar, Kahsmere Gate, Delhi as Document No.1535 in Addl. Book No. III, Vol. 95 at pages 142 to 143. The said Will was witnessed by two witnesses viz. Shri Krishan Gopal, nephew of the deceased and Shri C.B. Anand (Advocate).
4. Satpal was served with the notice issued in the said probate petition on 17.7.1981, but he did not file any objection to the grant of probate. Objections dated 13.10.1981 were filed only by Radha Rani. However, after the demise of Satpal, objections dated 13.2.1984 were filed by his son, Harmesh Pal.
5. The Will dated 19.5.1978 excluded both the daughters from inheritance. The estate of the deceased was FAO(OS) 188-190/2005 Page 2 of 17 bequeathed between the two sons, namely, Davinder Pal and Satpal.
6. In the meantime, Harmesh Pal filed on 14.03.1983 a petition under Section 276 of the Indian Succession Act, 1925 ('the said Act' for short) (verified on 05.10.1982) for grant of probate of the Will dated 14.5.1979 alleged to have been executed by the deceased, Smt. Bhagwati Devi Gaur. This case was numbered as Probate Petition No. 19/1983. On an application being filed and allowed in this petition, the earlier case pending before the District Judge being Probate Case No. 115/81 was transferred to the High Court and re-numbered as PR No. 59/1983. Davinder Pal filed objections in PR No. 19/1983. Subsequently, Harmesh Pal filed an application being I.A. No. 7899/2004 for withdrawal of this petition seeking probate of the Will dated 14.5.1979. Harmesh Pal admitted that the Will dated 19.5.1978 was the last and valid Will executed by late Smt. Bhagwati Devi Gaur. He appeared in the Court on 25.11.2004 and his statement was also recorded to that effect. On the basis of his statement, PR No. 19/1983 was dismissed as withdrawn.
7. Shri Sri Ram Sharma died during the pendency of the proceedings and accordingly, an application being I.A. No. 1282/2001 was filed by Shri Vipin Gaur s/o Davinder Pal for substitution in place of Shri Sri Ram Sharma, which application was allowed vide Order dated 7.11.2002. On the death of Smt. Radha Rani, her sons Ramesh Kumar and Rakesh Kumar and daughter Neelam Kansal were FAO(OS) 188-190/2005 Page 3 of 17 brought on record in her place in the probate petition. This appeal has been filed by the two sons and husband of late Smt. Radha Rani.
8. In her Objections dated 13.10.1981, Radha Rani had averred that the deceased did not execute any valid Will during her lifetime; that the deceased was uneducated and would not understand what the document was; that the Will was a forged and fabricated document; and that the deceased could not bequeath the agency of Indane Gas as it was allotted to her on the demise of her son Capt. Rajwant Pal during the Indo-Pak war of 1965.
9. On 21.10.1981, the following issues were framed :-
"1. Whether Smt. Bhagwati Devi, deceased made her last Will and testament dated 19.5.1978 in favour of the petitioner while possessed of sound disposing mind?
2. Whether the property (Distributorship Agency of Gas), subject matter of Will in question is heritable?
3. Whether the matter posed in issue No. 2 can be determined by this court in probate proceedings?
4. Relief."
10. Issue No. 3, being a purely legal one was treated as a preliminary issue, was decided vide order dated 23.1.1982, when it was held that the probate proceedings being concerned only with the issue of genuineness or otherwise of the Will, question regarding heritability of a Gas Agency could not be gone into in those proceedings. Issue No. 3 was accordingly held against the objectors. FAO(OS) 188-190/2005 Page 4 of 17 Accordingly, the only issues which survived for consideration were Issue Nos. 1 & 4.
11. The petitioner in support of his case examined himself as PW-1 and nephew of the deceased Mr. Krishan Gopal Sharma as PW-2. Shri Balbir Singh, 'Sarpanch' of village Chahla was examined as PRW-1; Shri Bachan Singh, 'Namberdar' of village Chahla as PRW-2; Mr. Ramesh Pal s/o Satpal as PRW-3; Mr. K.K. Gaur h/o Radha Rani as PRW-
4. Mr. Davinder Pal was examined as DPW-1; Mr. Har Nand Singh, Railway Clerk in Orient Express Co. Pvt. Ltd. as DPW-2; and Mr. L.N. Kapoor, Accounts Officer in Rural Electrification Corporation as DPW-3. Two court witnesses were also examined being Mr. C.B. Anand (Advocate) and Mr. P.S. Nair Senior Scientific Officer, Central Forensic Science Laboratory.
12. The learned Single Judge after considering the evidence on record has allowed the probate petition and declared the petitioner therein entitled to grant of Letters of Administration.
13. The learned Single Judge has noted that two witnesses have been examined by the petitioner therein to prove the Will dated 19.5.1978. Shri Krishan Gopal (PW-2), nephew of the deceased deposed that he was an attesting witness to the said Will. Sh. C.B. Anand (Advocate) was examined as a court witness. He stated that he had prepared the Will in question as per the instructions of the deceased and he was an attesting witness to the said Will. The petitioner, Shri Sri Ram Sharma was examined as PW-1 FAO(OS) 188-190/2005 Page 5 of 17 and stated that the deceased remained in sound disposing mind till her death. Davinder Pal was examined as DPW-1, who deposed that his mother (late Smt. Bhagwati Devi Gaur) had executed the Will in his presence.
14. The learned Single Judge has observed that the evidence led pertaining to the alleged Will dated 14.5.1979 does not have to be taken note of as the said Will was set up by Harmesh Pal who subsequently withdrew the claim under the said Will and accepted the Will dated 19.5.1978 as the last valid testament of the deceased, Smt. Bhagwati Devi Gaur. It was further observed that the other Objector, Smt. Radha Rani did not rely upon any Will as her case was that her mother did not execute any Will.
15. The learned Single Judge has also noted that vide order dated 25.11.1985, the two Wills dated 19.5.1978 and 14.5.1979 as also another Will dated 9.10.1976 were sent for forensic investigation to Central Forensic Science Laboratory (for short, 'CFSL'). The report was submitted by Sh. P.S. Nair, Senior Scientific Officer who was examined as a court witness. It was noticed that his evidence as also the report is to the effect that the Will in question bears the thumb impression of the deceased at the point of execution and that no categorical opinion is forthcoming qua the thumb impression of the deceased at the time of registration.
16. The learned Single Judge further noted though Harmesh Pal had withdrawn the claim under the Will dated 14.5.1979 executed in Punjab, the testimony of DPW-2 FAO(OS) 188-190/2005 Page 6 of 17 and DPW-3 showed that the deceased was in Cochin from 7.5.1979 to June 1979.
17. It has also been observed by the learned Single Judge that the Will in question is a registered Will and no defect in registration has been brought out. Endorsement by the Sub-Registrar concerned would prima facie show sound disposing of mind of the testator. It was also noted that both the attesting witnesses had been cross-examined and they corroborated each other and there was no reason to disbelieve the said two witnesses.
18. It was further observed in regard to the Will dated 14.5.1979 that the onus to prove the same was on Harmesh Pal and the said Will had been abandoned.
19. After considering the facts and circumstances of the case and going through the material on record as also the evidence led by the parties, the learned Single Judge came to the conclusion that it was established that the deceased executed the Will dated 19.5.1978 in a sound state of mind and was conscious of her acts and that there was no undue influence.
20. The learned counsel for the appellants has sought to assail the findings of the learned Single Judge on the following grounds.
21. The first plea raised by learned counsel for the appellants is that while granting Letters of Administration, the learned Single Judge did not consider the subsequent Will dated 14.5.1979 even though evidence had been recorded regarding the said Will. It is also pleaded that the learned FAO(OS) 188-190/2005 Page 7 of 17 Single Judge has treated the matter as a private dispute between the parties and ignored the fact that a probate petition is a 'judgment in rem and not in personam'. In this behalf, reliance is placed upon the judgment of the Apex Court in Anil Kak vs. Kumari Sharada Raje and Ors., (2008) 7 SCC 695. It was further pleaded that the learned Single Judge had completely ignored the Will dated 14.5.1979 on the basis of a concession / settlement between some of the parties even though the CFSL had concluded that the thumb impressions on both the Wills were of the same person. Reliance was placed upon the judgment of the Apex Court in Civil Appeal No. 6575/2008 titled as Chandrabhai K. Bhoir and Ors. vs. Krishna Arjun Bhoir and Ors. decided on 07.11.2008, to submit that it is impermissible in law to ignore the last Will and Testament on the basis of agreement between the parties.
22. The second plea raised by the learned counsel for the appellants was that the Will dated 19.5.1978 was surrounded by various suspicious circumstances and the evidence in this regard has been overlooked and/or brushed aside in the impugned judgment as minor discrepancies. In this regard, a reference has been made to the contradictory stand of the petitioner / executor in the petition and his cross-examination with regard to knowledge of the Will. It was further pleaded that the correspondence exchanged between the Executor and the major beneficiary showed collusion regarding the Will dated 19.5.1978. A reference was also made to two FAO(OS) 188-190/2005 Page 8 of 17 letters dated 11.12.1976 (Ex. R/3) and 29.6.1977 (Ex. R/2/2).
23. The third plea raised by the learned counsel for the appellants is that there are various infirmities in the impugned order which are as under :-
a. At page 4, on the basis of statement of counsel for respondent, learned Single Judge held that the legal heir, Radha Rani is not interested. b. At page 5, the learned Single Judge erred in holding that it need not look into the objections of Shri Harmesh Pal.
c. At page 6, the learned Single Judge erred in holding that the exclusion of daughters is bona fide. d. At page 9, the learned Single Judge held that he need not refer to evidence with regard to the subsequent Will.
24. Lastly, the learned counsel for the appellants referred to the judgment of the Apex Court in Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr., AIR 1962 SC 567 wherein the principles governing grant of Letters of Administration has been laid down.
25. On the other hand, the learned senior counsel for the respondents sought to bring our attention to the fact that no heir of the deceased, other than Smt. Radha Rani, had raised objections to the Will dated 19.5.1978. A reference in this regard was also made to the fact that late Shri Satpal did not file any objections during his lifetime. A reference was also made to the objections filed by Smt. FAO(OS) 188-190/2005 Page 9 of 17 Radha Rani to make submissions in respect of the grounds having taken in the objections itself as noticed aforesaid.
26. The first plea raised by the learned senior counsel for the respondents was that since Shri Harmesh Pal withdrew his petition and objection to the Will dated 19.5.1978, nobody else was challenging the Will dated 19.5.1978. A reference has also been made to the fact that the appellants were not prosecuting the appeal nor did appear on a number of dates. It was further submitted that under the circumstances, the learned Single Judge did not have to decide the validity of the Will dated 14.5.1979 as no one was propounding the said Will. A reference was also made to the observation of the learned Single Judge that at the time of alleged execution of the Will dated 14.5.1979, Smt. Bhagwanti Devi Gaur was living in Cochin while the Will was executed at Chilla. A reference was also made to the fact that no arguments were advanced on behalf of the appellants before the learned Single Judge in support of the Will dated 14.5.1979.
27. The second plea raised by the learned senior counsel was that there were no suspicious circumstances surrounding the Will. It was submitted that the Will has been proved by two attesting witnesses and that it has been proved that Smt. Bhagwati Devi Gaur was possessing sound disposing mind. A reliance is also placed upon the judgment of the Supreme Court in Malkani v. Jamadar, AIR 1987 SC 767 to contend that merely because beneficiaries under a Will take active part in execution, the FAO(OS) 188-190/2005 Page 10 of 17 testamentary capacity of the executrix or the genuineness of the Will cannot be doubted only on that account. A reliance is also placed upon the judgment of the Apex Court in Palanivelayutham Pillai & Ors.
v. Ramachandran & Ors., JT 2000(7) SC 47 to contend that mere presence of the beneficiary at the time of execution cannot be a suspicious circumstance.
28. The learned senior counsel also sought to rely upon the judgment of the Supreme Court in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, AIR 1995 SC 1852 to support the proposition that in a registered Will, the endorsement by the Registrar / Sub-Registrar would show that the testator was of sound disposing mind and that it was executed out of her free will and volition and that there must be real, germane and valid suspicious features and not fantasy of the doubting mind. Reliance was also placed upon the judgment of the Apex Court in Naresh Charan Das Gupta v. Paresh Charan Das Gupta, AIR 1955 SC 363 to contend that once it has been proved that a Will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it.
29. Lastly, it was pleaded by the learned senior counsel that merely because the bequest was not made equally to all the legal heirs, it cannot be said that the Will is bad and that it was within the capacity of the testator to give the entire estate to any of the legal heirs and could even FAO(OS) 188-190/2005 Page 11 of 17 bequeath the property to a stranger towards whom she had liking and that the purpose of executing a Will is to deviate from the line of inheritance.
30. We heard learned counsel for the parties and have perused the record.
31. It is trite to say that where there are two wills propounded, even if the earlier will is proved in accordance with law, there would be no entitlement for grant of the probate of that will if the subsequent will is also proved. The reason is that in terms of Section 276 of the said Act, the probate is granted for 'last will and testament'. In the present case, one of the legal heirs of the testator was Mr.Satpal. Mr. Satpal never propounded any will, but his son Sh. Harmesh Pal filed a separate petition for grant of probate of a subsequent will dated 14.05.1979. Sh.Harmesh Pal, however, did not prosecute the petition to its logical conclusion and withdrew the petition.
32. The grievance of the appellants is that despite the said withdrawal of the petition, it was the bounden duty of the learned Single Judge to have considered the aspect of the subsequent will dated 14.05.1979.
33. The aforesaid submission, in our considered view, completely ignores the fact that before the Will dated 14.05.1979 could be relied upon, it had to be proved in accordance with law. That would require not only evidence to be led but arguments to be made as to how the will stood proved in accordance with law. No such submission was made. If the appellants were interested FAO(OS) 188-190/2005 Page 12 of 17 in supporting the Will dated 14.05.1979, nothing prevented them from getting themselves transposed as petitioners in those probate proceeding or to take necessary steps for proving the Will. This is coupled with the fact that the case of the appellants was, in fact, that no will had been executed at all. If the appellants wanted to change their stand and support the Will dated 14.05.1979, they were required to take certain logical steps which they failed to do. It is undoubtedly true that the grant of a probate is a judgment in rem and not in personam. This does cast a higher duty on the court while scrutinizing a Will, but it does not imply that merely because another alleged subsequent Will has been filed, the Court without any assistance must proceed suo motu to make an enquiry and give a finding on the same when no one is propounding or supporting that the Will in the Court. The withdrawal of the petition for grant of probate of the Will dated 14.05.1979 coupled with the absence of any pleadings or action on the part of the appellants in that behalf leads only to one conclusion that the learned Single Judge had no option but to ignore the alleged Will dated 14.05.1979.
34. The Will dated 19.05.1978 is a registered one. In Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr 's case (supra), the Supreme Court had noted that a Will being registered is a circumstance to prove its genuineness. This is an important factor, but that by itself, will not imply that nothing more needs to be FAO(OS) 188-190/2005 Page 13 of 17 proved. If there are suspicious circumstances regarding its execution, they can certainly be looked into. This would, however, require the appellants to prove such suspicious circumstances to negate the grant of probate of the said Will. The Will does not bequeath estate to outsiders but bestows the estate on persons in the direct line of inheritance though it does exclude the daughters. However, this is not an unusual aspect in view of the social scenario in India, more so, for the period when the Will was executed in the year 1978.
35. Learned counsel for the appellants sought to emphasize that the executor in a letter dated 11.12.1976, addressed to one of the legal heirs, had referred to the fact that some eminent lawyer should be consulted about the Will of the testator which was executed and to verify whether the Will was flawless and uncontestable. In another letter dated 29.06.1977, written by one of the heirs to the executor, a reference has been made to the fact that after the demise of the testator, the Will would have to be got 'proved' through a civil court and processed thereafter, but that the testator may not be consulted as it would upset her. The purpose of this reference is that the executor had knowledge of a Will and despite this in his cross examination has stated that he was unaware of the fact that if the testator had, in fact, executed any Will before her death and that he came to know only after her death that she had executed a Will. The appellant when confronted with the letter stated that he did not remember FAO(OS) 188-190/2005 Page 14 of 17 how he had written the letter. In respect of the aforesaid, it may be noticed that there are not actually two Wills but three Wills. There was an earlier Will dated 09.10.1976 which was undisputed. The date of the letters show that they are prior to the Will dated 19.05.1978 and thus could only refer to the earlier Will dated 09.10.1976. The executor could hardly have made a reference to the Will dated 19.05.1978 even prior to that date. The letters would have to be read in that context and a hyper technical view cannot be taken on this aspect when the overall testimony of the executor is not blameworthy.
36. In our considered view, the testimony of the executor cannot be ignored. Learned counsel for the appellant has really not been able to point out to us any other suspicious circumstances other than making general allegations which would disentitle the grant of probate of the Will dated 19.05.1978.
37. Learned counsel for the appellants has assailed the impugned judgment for various infirmities as set out in para 23 aforesaid. We, however, find no such infirmities. When the learned Single Judge was referring to the fact that legal heirs of Smt. Radha Rani, appellants herein, were not interested it was obviously in the context of the fact that the appellants had not even cared to appear before the learned Single Judge to argue their case. The matter has gone on in their absence. Similarly, Sh. Harmesh Pal was not pressing his objections to the Will and had even withdrawn the second probate petition. The FAO(OS) 188-190/2005 Page 15 of 17 learned Single Judge could not be expected to go into the objections as a theoretical exercise. Insofar as the ignoring the exclusion of the daughters is concerned, it has already been mentioned aforesaid that this is not an uncommon practice and can hardly be a reason to doubt a registered Will. The absence of reference to the subsequent Will has already been dealt with hereinbefore. It may be noticed that a judgment will apply to its own facts and only a principle of law enunciated apposite to the facts of another case can be of assistance. The present case is not one where a subsequent Will had been ignored on concession/settlement, but that petition itself was never pressed nor was that Will proved in accordance with law. Thus, the judgment in Anil Kak vs. Kumari Sharada Raje and Ors's case (supra) would have no application. The legal principle that it is impermissible to exclude the last Will on the basis of an agreement between the parties as enunciated in Chandrabhai K. Bhoir and Ors. vs. Krishna Arjun Bhoir and Ors.'s case (supra) is again unexceptionable but, as noticed above, the present case is not one of ignoring a Will by agreement between the parties but of a subsequent Will not being proved in accordance with law as the petition itself was withdrawn and no one argued in support of the Will.
38. The conclusion we have arrived at finds support from the judgment in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar's case (supra) which dealt with the consequences of a registered Will where an endorsement is made by the FAO(OS) 188-190/2005 Page 16 of 17 Registrar/Sub Registrar. In such a case, it shows that the testator was of sound disposing mind and the Will was executed out of her own free will and volition unless there are real, germane and valid suspicious features and not fantasy of the doubting mind. Learned counsel for the appellants has not been able to show any such suspicious features. It may also be noticed that where the beneficiaries are the direct legal descendants, naturally the legal descendants would have played their roles in respect of the execution of the Will of an old lady as stated in Malkani v. Jamadar's case (supra).
39. We thus find no infirmity in the impugned order.
40. The appeal is accordingly dismissed with costs of Rs.10,000/-.
SANJAY KISHAN KAUL, J.
MARCH 12, 2009 SUDERSHAN KUMAR MISRA, J.
mk/dm
FAO(OS) 188-190/2005 Page 17 of 17