Delhi District Court
District Judge vs State on 24 August, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 37/09
New P.C. No. 16084/16
1 Pratibha
W/o Sh. Anil Minocha
D/o late Sh. Omkar Bahadur Parti
R/o 5/197, Sunder Vihar,
New Delhi- 110087
2 Arvinder Kumar Parti
S/o Late Sh. Omkar Bahadur Parti
R/o 5/197, Sunder Vihar,
New Delhi-110087
Petitioner No. 2 through Petitioner No. 1
..........Petitioners
Vs.
1 State
2 Sh. Ram Mohan Parti,
S/o late Sh. Omkar Bahadur Parti,
R/o H. No. 370, Sector-18
Pocket-C, Rohini
3 Sh. Arunjit
S/o late Sh. Omkar Bahadur Parti,
R/o 1074, GH-14, Paschim Vihar,
Delhi
4 Ms Promila,
W/o Sh. Surender Gopal,
R/o 391/3, Urban Estate,
Near Pipli Bus Stand,
Kurukshetra, Haryana
......Respondents
PC No. 37/09 Pratibha & Ors Vs State & Ors 1/32
Date of institution of the case : 24.09.2009
Date reserved for judgment on : 21.08.2018
Date of pronouncement of judgment: 24.08.2018
JUDGMENT:
1 A petition under Section 278 of the Indian Succession Act, 1925 for issuance of Letter of Administration/Probate in respect of the estate of late Sh. Omkar Bahadur Parti has been filed.
2 In brief the facts are that Shri Omkar Bahadur Parti S/o late Shri H.R. Parti (hereinafter referred to as "deceased/testator") was a retired government official, had five children, three sons and two daughters and died on 01.12.2008.
3 It is stated that the eldest son, the respondent no. 2, aged 59 years, after 3-4 years of his marriage, got separated and has been living separate from his parents for the last more than 20 years.
4 It is stated that the second son Sh. Arvind Kumar Parti, aged about 51 years, the petitioner no. 2 is mentally retarded and is suffering from Paranoid Schizophrenia ( copy of the certificate to this effect issued by the senior doctor & Psychiatrist Sh. A.K. Gupta is annexed as Annexure 'A') and was fully dependent upon his parents and after the death of his parents, now on the petitioner for everything and has been under going treatment from RML Hospital. He is unmarried. 5 It is stated that the third son, the respondent no. 3, aged about 49 years, has also been living separate from his parents and brother for the last more than 15 years.
PC No. 37/09 Pratibha & Ors Vs State & Ors 2/32 6 It is stated that deceased/testator had two daughters. The eldest daughter, the respondent no. 4 aged about 55 years, sister of the petitioner no. 1 is happily married and is living with her husband and her children.
7 It is stated that petitioner no. 1, aged about 47 years is the youngest child of her parents. After her marriage the petitioner no. 1 had lived with her husband for 1 year approximately and was made to suffer physical and mental torture and out of the said wedlock the petitioner no. 1 gave birth to a daughter which is in the custody and care of petitioner no. 1.
8 It is stated that after being thrown out of her matrimonial home, the petitioner no. 1 has been living separate from her husband with her parents and one mentally retarded brother i.e petitioner no. 2. The petitioner no. 1 has filed a divorce petition and same is pending in Tis Hazari Courts. The petitioner no. 1 has also filed maintenance petition under Section 125 Cr.P.C which is also pending in Tis Hazari Courts.
9 It is stated that father and mother of the petitioners and respondent no. 2 to 4 died on 01.12.2008 and 26.02.2009 respectively and the petitioner no. 1 was living with them at the above given address alongwith her daughter and mentally retarded brother, Arvind Kumar Parti and even on the date of filing this petition, petitioner no. 1 is staying at the same address and looking after her brother.
10 The deceased/testator was a Section Officer in Doordarshan ( Ministry of I & B) and retired from his services on PC No. 37/09 Pratibha & Ors Vs State & Ors 3/32 31st May, 1982. The deceased/testator was drawing pension. He had vide his letter dated 31.01.2005, written to the Director General, Doordarshan, Mandi House, New Delhi for inclusion of the name of his mentally retarded son Sh. Arvind Kumar Parti, the petitioner no. 2 for the purpose of grant of family pension. Copy of the letter is annexed as Annexure 'C" and also informed the department that the petitioner no. 1 would draw the family pension on behalf of his mentally retarded son.
11 It is stated that Ministry of Information & Broadcasting vide its letter dated 06.09.2006, addressed to the Deputy Controller of Accounts, P &AO (IRLA), Ministry of I & B, AGCR Building, I.P. Estate, New Delhi with a copy to Sh. Omkar Bahadur Parti accorded its approval for inclusion of the name of Arvind Kumar, son of deceased in the family details of deceased and requested for P & AO to take necessary action in the matter under intimation to that Ministry at the earliest. The deceased/testator was drawing his pension from Allahabad Bank, Jawalla Heri, Paschim Vihar, New Delhi.
12 It is stated that deceased/testator wanted that after his death the petitioner no. 1 be the guardian of his mentally retarded son i.e the petitioner no. 1 and wrote a letter appointing the petitioner no. 1 as guardian of his mentally retarded son.
13 It is stated that the name of Sh. Arvind Kumar is included in the family details but to draw the family pension on his behalf, the petitioner no. 1 has filed a petition under Section 50 of the Mental Health Act requesting that the petitioner no. 1 may be declared the guardian of Sh. Arvind Kumar, the petitioner PC No. 37/09 Pratibha & Ors Vs State & Ors 4/32 no. 2 and same is pending before the court of Ms Pratibha Rani, the then ld. District & Session Judge, Tis Hazari Courts, Delhi.
14 It is stated that deceased/testator was the absolute owner of the House No. 5/197, Sunder Vihar, Paschim Vihar, New Delhi- 110087 and that property was his self earned property. The deceased/testator had also movable property in the form of Bank account and copy of bank statement of the account of deceased/testator is annexed as Annexure E. 15 It is stated that on 17.08.2008, late father of the parties executed a Will and copy of the Will is annexed as Annexure F. It is stated that the Will was executed by deceased/testator on his free will without any kind of pressure and in his full senses and has been witnesses by the two witnesses.
16 It is stated that cause of action arose to the petitioner on 01.12.2008 when the father of the parties died and the petitioner no. 1 is looking after the mentally ill brother from the very beginning, has to look after all alone after the death of her parents. Petitioners seek Letter of Administration/Probate in respect of the estate of late Sh. Omkar Bahadur Parti- in their favour.
17 Upon filing of petition, notices were issued to all the legal heir of the deceased, respondents, state through collector and citation to general public got published in daily newspaper "Statesman" dated 01.03.2010.
PC No. 37/09 Pratibha & Ors Vs State & Ors 5/32 18 The valuation report in respect of immovable property was called from the concerned SDM/Collectors, accordingly Tehsildar, Punjabi Bagh, filed valuation report in respect of property bearing house No. 5/197, Sunder Vihar, Paschim Vihar, New Delhi-87 and assessed the value of the same as Rs. 70,00,000/-. ( Rupees Seventy Lacs only).
19 Respondent no.2 Sh. Ram Mohan Parti, filed written statement/objections to the petition and taken preliminary objections that the present petition is in its present form as the same has been filed by two petitioners out of which petitioner no. 2 is stated to be mentally retarded and suffering from Paranoid Schizophrenia and due to which the same is stated to be signed by petitioner n. 1 for herself and on behalf of petitioner no. 2.
20 It is stated that petitioner no. 1 has also filed a petition under Section 53 of Mental Health Act for her being appointed as guardian of petitioner no. 2 and the said petition is pending adjudication in the court of Ms Pratibha Rani, the then ld. District Judge, Delhi and till the date of filing of the present petition, the petitioner no. 1 has not being appointed guardian. It is stated that the answering respondent had filed his objections in the said matter whereby it has been specifically and categorically objected to her being appointed as guardian of petitioner no. 2 as she has an adverse interest and she is not a suitable person for such appointment.
21 It is stated that petitioner no. 1 with the malafide intentions to grab the 1/5th share of petitioner no. 2 and also to grab the monthly family pension which may be ordered to be PC No. 37/09 Pratibha & Ors Vs State & Ors 6/32 given to petitioner no. 2 has been administrating different medicines to him to keep him in a state of delusion and drowsiness. Moreover, the petitioner no. 1 is living separately from her husband and she is undergoing divorce proceedings which has been filed by her after the death of her father with the sole motive to grab the property in question by book and crook. The present petition without any permission from this Hon'ble court by way of relevant application under order 32 CPC is not tenable under the law.
22 It is stated that present petition is liable to be dismissed as the same is based upon a false and fabricated Will purported to have been executed by the deceased. It is stated that Will in question is false and fabricated due to the following reasons
a) The signatures on the alleged Will dated 17.08.2008 are not of the father of the parties to this petition.
b) The copy of the alleged Will dated 17.08.2008 was not filed at the very first instance alongwith the petition under the provisions of Mental Health Act by the petitioner no. 1 for her being appointed as guardian of petitioner no. 2 and the said Will was made and fabricated at the later stage.
c) The testator of the alleged Will does not leave/bequeath anything or any arrangement for his old and ailing wife Smt. Raksha Kumari who had no independent source of income and who was alive on the date when the same is stated to have been executed which is highly improbable.
d) The testator of the alleged Will was very clear and specific on the point that he would leave his movable and immovable properties intestate as he considered his sons and PC No. 37/09 Pratibha & Ors Vs State & Ors 7/32 daughters equal inspite of the fact that many a times, the petitioner no. 1 even went to the extent of getting her father beaten physically by the petitioner no. 2 and also inspite of the fact that old and ailing father lived in an apprehensive atmosphere and under duress and further also inspite of the fact that the father of the parties to this petition had debarred respondent no. 3 (Sh. Arunjit) through a duly published public notice.
e) The father of the parties to this petition had expressed his above said feelings and desire that the property in question shall be shared equally by all his sons and daughters before and in presence of many relatives and his execution of the alleged Will dated 17.08.2008 of his free will is not only doubtful but also impossible.
f) The father of the parties to this petition could not have executed the alleged Will dated 17.8.2008 as he always refuted any such idea before the respondent no. 2 on many occasions, particularly, on 16.08.2008 when they both met at the house of the father even at Balaji Hospital, Paschim Vihar, New Delhi, in the month of October/November 2008 ( Tikka ) when he ( father) was admitted for treatment of prostrate/urine problem. It is stated that whenever deceased/testator met him told him that " son I have not executed any Will and he wish that you being the eldest distribute this house and his money etc. equally amongst all sisters-brothers. For him you all five sisters-brothers are equal, and for him all his five fingers are equal. See he had disinherited Arunjit by publication in newspaper, I pardon him and I also pardon Arvind who had manhandled him on the instigation of Baby. May God give good sense to Pratibha."
PC No. 37/09 Pratibha & Ors Vs State & Ors 8/32
g) The marginal witnesses on the alleged Will, namely, Sh. Ashok Vij and Sh. Siya Ram Kapoor were neither related nor close friends to the father of the parties to this petition, whereas many of the close relatives and friends of the alleged testator are living in the neighbourhood and in the state of Delhi.
h) The alleged Will dated 17.8.2008 does not have any thumb impression or photographs of the father of the parties to this petition and there is no certificate from any medical practitioner in respect of the mental state of the alleged testator at the time of alleged execution of the same.
i) The alleged Will dated 17.08.2008 has not been got registered by the alleged testator in spite of the fact that office of the Sub-Registrar is nearby.
j) The alleged will dated 17.8.2008 has not been executed by the father of the parties to this petition as the other sister, namely, Smt. Promila (respondent no. 4) has told the answering respondent that on 17.08.2008 she was at her father's house due to the occasion of Raksha Bandan and on the said date neither the answering respondent's father had gone any where nor any one of the alleged witnesses, namely, Sh. Ashok Vij or Sh. Siya Kapoor had visited the house.
k) The alleged Will dated 17.08.2008 was never produced after the death of the father of the parties to this petition nor it was produced after the death of the mother Smt. Raksha Kumari on 26.02.2009. It is stated that the alleged Will was not even talked about by the petitioners before any of the relatives of the parties in this petition.
23 It is stated that valuation of Rs. 14 lakhs as given by the petitioners is false whereas the correct value of the property PC No. 37/09 Pratibha & Ors Vs State & Ors 9/32 in question is more than Rs. 64 lakhs, accordingly, this Hon'ble court does not have jurisdiction to try and adjudicate the present petition.
24 It is stated that present petition is liable to be dismissed as the answering respondent had already filed a suit for partition before the Hon'ble High Court of Delhi much prior to the knowledge of the present petition. The said suit bearing CS (0S) No.216/2010 is required to be clubbed with the present petition to avoid divergent adjudication.
25 On merit all the contents of the petition are denied. It is stated that respondent no. 2 had to shift due to his transfer but he had left his furniture and other household articles at the family house and never separated from his parents/family as alleged and presently he is living in separate accommodation due to scarcity of space in the family house. It is stated that the answering respondent had always been shouldering his responsibilities towards his parents both socially and financially as and when any occasion arose and it was he who had incurred considerable expenses at the time of marriage of petitioner no. 1 and other brother and sister, had attended his parents and nursed them as and when they required medical treatment/hospitalization from time to time.
26 It is stated that petitioner no. 2 is a Commerce Graduate from Delhi University and he is capable of earning his livelihood, but it the petitioner no. 1 who had always been demoralizing him and creating a gap between him and the answering respondent. The petitioner no. 2 is usually normal and PC No. 37/09 Pratibha & Ors Vs State & Ors 10/32 it is a known fact to many relatives that the petitioner no. 1 has been administrating different medicines to him to keep him in a state of delusion and drowsiness in order to grab the 1/5th share of petitioner no. 2 in the property and other assets.
27 It is stated that on 8.3.2010, the answering respondent got the information in the court of Ms Pratibha Rani, the then ld. District Judge, Delhi, during the hearing in the matter under the Mental Health Act that the petitioner No. 1 alongwith her brother Arunjit i.e respondent no. 3 in this petition had got their brother Arvind Kumar Parti admitted in the Institute of Human Behaviour & Allied Sciences at Shahdara, Delhi. On this information the answering respondent, alongwith his other sister ,namely, Smt. Promila, brother-in-law, Sh. Surender Mehta, his wife Smt. Vandana Parti and his son Sh. Romil Parti went to the said hospital at about 4 P.M. to meet Arvind Kumar Parti. At the hospital, the answering respondent alongwith the above said persons met Sh. Arvind Kumar Parti in the Male Ward ABC, Unit
-II, Bed No. 12, where Arvind Kumar Parti wept continuously and hugged all of them and stated that he was being kept captive in hospital and wanted to be free from there. He further told that Baby (Pratibha) had given him injection on his tongue after tying him with ropes and he got unconscious and when he gained consciousness he found him in the hospital and requested him to save him from Baby. He further stated that both got him admitted in the hospital inspite of being normal and they did not get him discharged inspite of the fact that he does not require any treatment from the said hospital. From his talks and behaviour, Sh. Arvind Kumar Parti was quite normal. The doctor from the said hospital had deposed in the court of Ms Pratibha Rani, the PC No. 37/09 Pratibha & Ors Vs State & Ors 11/32 then ld. District Judge. Delhi that Sh. Arvind Kumar Parti is normal and he is responding well.
28 In response to para No. 4 of the petition, it is stated that the respondent no. 3, namely, Sh. Arunjit was debarred by the father of the parties to this petition vide publication in newspaper and as stated in the foregoing paras, the father had pardoned him and wished him to have a share in the assets. It is stated that Sh. Arvind Kumar Parti is not mentally retarded and the petitioner no. 1 may be put to strict proof of the averment made in this regard. The remaining contents of the petition are denied and reiterated the preliminary objections and seeks dismissal of the present petition with exemplary costs.
29 Petitioner filed to the replication to the objection filed on behalf of respondent no. 2. It is stated that petitioner no. 2 is not in a position to understand the contents of the petition and is residing under the care and custody of Petitioner no. 1 that is why petition was filed by petitioner no. 1 for her own behalf and also on behalf of petitioner no. 2. Petitioner further denied all the objections taken by respondent no. 2 and reiterated the averment mentioned in the petition.
30 Respondent no. 3 filed reply to the petition and given No Objection if the Letter of Administration/Probate in respect of the estate of deceased is issued in favour of petitioners.
31 Written statement also filed on behalf of respondent no. 4 taking preliminary objection that petition for issuance of Letter of Administrtion/Probate in respect of the estate of PC No. 37/09 Pratibha & Ors Vs State & Ors 12/32 deceased is absolutely false, frivolous and baseless and it is liable to be dismissed. It is stated that Will dated 17.8.2008 is false and frivolous as the signatures on the said document are not those of the father of the answering respondent.
32 It is stated that answering respondent was present at her parents house due to the occasion of Raksha Bandhan and on the said date neither the answering respondent's father had gone anywhere nor any of the alleged witnesses, namely, Sh. Ashok Vij or Sh. Siya Ram Kapoor had visited the house of the respondent's parents. Thus the question of execution of the alleged Will does not arise at all. Thereafter respondent no. 4 also denied all the contents on merit and repeat the objections taken on the same line as of respondent no. 2 and seeks dismissal of the petition.
33 On the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 10.09.2010:-
1. Whether the suit is not maintainable in the present form? Onus on parties.
2. Whether the will dated 17.08.2010 is forged and fabricated? OPR
3. Whether the petitioner is entitled for probate of will dated 17.08.2010 executed by Sh. Omkar Bahadur Parti? OPP
4. Relief
34 It is pertinent to mention here that above issues were framed on 10.09.2010 and thereafter as per order dated 21.05.2014 again following issues have been framed by my ld. Predecessor:-
PC No. 37/09 Pratibha & Ors Vs State & Ors 13/32
1. Whether the Will dated 17.08.2008 executed by testator Sh. Onkar Bahadur Parti is a vaild, legal and genuine Will? OPP
2. Whether the petitioner is entitled to the grant of probate/Letter of Administration in respect of the aforesaid Will dated 17.08.2008, as prayed for? OPP
3. Relief 35 It appears that due to bonafide error the above issues have been framed twice, however, the substance of the issues remained same. The issue no. 3 of dated 10.09.2010 and issue no. 1 & 2 of dated 21.05.2014 are same.
36 Petitioners in order to prove their case examined Smt. Pratibha, petitioner no. 1 as PW-1, Sh. Ashok Vij, attesting witness to the Will as PW-2. Vide order dated 17.03.2018 evidence of petitioners was closed.
37 Respondents examined Sh. Ram Mohan Rai Parti, as R2W1. Vide separate statement of respondent no.2, evidence on behalf of respondent no. 2 was closed on 11.12.2017.
38 Respondent no. 3 Sh. Arunjit Parti appeared in witness box as R3W1 and vide order dated 06.07.2018, evidence on behalf of respondent no. 3 was closed.
39 Respondent no. 4 Smt. Promila, appeared in witness box as R4W1. Vide separate statement of ld. Counsel for respondent no. 4, evidence on behalf of respondent no. 4 was closed on 04.04.2018.
PC No. 37/09 Pratibha & Ors Vs State & Ors 14/32 40 I have heard Sh. Rakesh Chaudhary, counsel for respondent no. 2, Sh. Sanjay Aggarwal, counsel for respondent no. 4 on 21.08.2018. However, despite opportunities counsel for the petitioners failed to address oral final arguments as well as to file written submission the reason best known to him.
41 It is pertinent to mention here that one day before when the case is fixed for order on 23.08.2018, petitioners moved an application for seeking chance to argue the matter and also filed written submissions and also rely on the judgment already submitted on behalf of petitioners in Anita Khosla Vs State & Ors, 173, ( 2010) Delhi Law times 290, Delhi High Court. I have gone through the written submissions filed on behalf of petitioners which is repetition of averments mentioned in the petition and also reiterated the section 63 (C) of Indian Succession Act and Section 68 of Indian Evidence Act.
42 Findings on issues.
The issues framed on 10.09.2010 as well as framed on 21.05.2014 in substance are same, therefore taken together being inter-connected. The onus of issue no. 3 dated 10.09.2010 and issue no. 1 & 2 of dated 21.05.2014 are on petitioners and onus of issue no. 1 & 2 framed on 10.09.2010 is on respondent no. 2 & 4.
43 In order to decide the present petition, let us peruse the provisions and principles of law laid down by the Apex Court.
The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which PC No. 37/09 Pratibha & Ors Vs State & Ors 15/32 he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
19. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
PC No. 37/09 Pratibha & Ors Vs State & Ors 16/32
20. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the 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".
44 The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two PC No. 37/09 Pratibha & Ors Vs State & Ors 17/32 witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
45 The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
68. Proof of execution of document required by law to be attested.--- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
PC No. 37/09 Pratibha & Ors Vs State & Ors 18/32 46 Apex court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13 th November 1958 in which the Apex court laid down the following prepositions on the nature and standard of evidence required to prove a Will:-
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested , it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally PC No. 37/09 Pratibha & Ors Vs State & Ors 19/32 receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion, etc, in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounded the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. "
47 The Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal PC No. 37/09 Pratibha & Ors Vs State & Ors 20/32 provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules-
(a) The testatrix shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testatrix, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testatrix sign or affix his mark to the will or has seen some other person sign or will, in the presence and by the direction of the testatrix, or has received from the testatrix a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the will in the presence of the testatrix, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
20.2 Section 68 & 71 of the 1872 Act:
68. Proof of execution of document required by PC No. 37/09 Pratibha & Ors Vs State & Ors 21/32 law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
21. As would be evident from the contents of Section 63 of the Act that to execute the will as contemplated therein, the testatrix would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
PC No. 37/09 Pratibha & Ors Vs State & Ors 22/32
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property.
22.1 In the evidentiary context Section 68 of the 1872 Act enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of the court and capable of giving evidence proves its execution. The proviso attached to this section relaxes this requirement in case of a document, not being a will, but has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to PC No. 37/09 Pratibha & Ors Vs State & Ors 23/32 be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence. 22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient would be, to scrutinize the evidence adduced by the parties."
48 Issue No. 1 & 2 framed on 10.09.2010.The onus of issue no. 1 & 2 framed on 10.09.2010 is on respondent no. 2 & 4. I have gone through the petition, the petition is signed by petitioner no. 1 Ms Pratibha not by petitioner no. 2 Sh. Arvind Kumar Parti. The petition is verified by Sh. Ashok Vij as per Section 281 of Indian Succession Act. In my considered opinion, I do not find any substance in the objection that petition is not maintainable in its form, therefore, issue no. 1 framed on 10.9.2010 is decided in favour of the petitioners and against respondent no. 2 & 4.
49 The respondent no. 2 & 4 taken the objection that Will Ex. PW-1/108 is forged and fabricated. They have not made any attempt to produce any oral and documentary evidence to establish on record that how the Will Ex. PW-1/108 is forged and fabricated. No efforts have been made to brought on record any PC No. 37/09 Pratibha & Ors Vs State & Ors 24/32 evidence disputing the genuineness of the Will. Their main objection remained that this is the hand work of petitioner no. 1 and respondent no. 3 in collusion with attesting witness PW-2 Sh. Ashok Vij, however, their substantive objection is not proved on the basis of documentary or oral evidence.
50 R2W1 Sh. Ram Mohan Rai Parti appeared in witness box and he relied on certified copy of the judgment dated 25.04.2011 Ex. R2W1/1 of Sh. O.P. Gupta, the then ld. District Judge. However, nothing brought on record during his testimony with regard to forged and fabrication of the Will in question. Similarly, respondent no. 4 Smt. Promila, appeared in witness box as R4W1 and her affidavit is also on the same lines. There is dispute raises about the celebration of Raksha Bandan on 16.08.2008 or 17.08.2008. In my considered opinion as per official gazette the Raksha Bandhan was on 16.08.2008. I find no substance in this plea of celebration of Raksha Bandhan on 17.08.2008. The respondent no. 4 also not brought on record any material evidence to indicate about the fabrication and forgery of the Will Ex. PW-1/108. In my considered opinion that respondent no. 2 & 4 failed to establish that Will is forged and fabricated. However, as discussed, hereinabove, they are able to establish on record the suspicious circumstances surrounded the will, therefore issue no. 2 framed on 10.09.2010 is decided against respondent no. 2 & 4 and in favour of petitioners.
Findings on issue no. 3 framed on 10.09.2010 and issue no. 1 & 2 framed on 21.05.2014.
51 The star witness of the petitioners is PW-2, the attesting witness to the Will, Sh. Ashok Vij, who appeared in PC No. 37/09 Pratibha & Ors Vs State & Ors 25/32 witness box and proved his affidavit Ex. PW-2/A. In the affidavit he deposed that deceased Sh. Omkar Bahadur Parti was his friend and having friendly and cordially relations. He further proved the death certificate Ex. PW-1/101 of deceased Sh. Omkar Bahadur Parti. He further deposed that on 17.08.2008 Sh. Omkar Bahadur Parti called him at his house and showed his desire to execute a Will Ex. PW-2/1 in favour of petitioner no. 1 Smt. Pratibha and petitioner no. 2 Sh. Arvind Kumar Parti. He further deposed that the will was executed by the deceased Sh. Omkar Bahadur Parti in the presence of another attesting witness Sh. Sita Ram Kapoor in sound mind. The will was read out to him and Sh. Sita Ram Kapoor by the deceased Omkar Bahadur Parti. He further proved his signatures at point A. He Mark the Will as Ex. PW-2/1, however, the Ex. Mark was already put on the Will by the petitioner as Ex. PW-1/108, which was objected, as being propounder of the will she cannot marked it. In my consider opinion, although the Mark Ex. PW-2/1 is not put by attesting witness Sh. Ashok Vij, the exhibition of the Will as Ex. PW-1/108 does not effect the exhibition.
52 In the detailed cross-examination, PW-2 Sh. Ashok Vij deposed that he has been working with LIC. He has no knowledge whether wife of the deceased/testator was alive on the day of execution of the will or not as deceased did not disclose about his wife.
53 PW-2 Sh. Ashok Vij, further admitted that he knew Sh. Arunjit Parti since 2007 and he has no relations with any other family member of the deceased. He admitted that Sh. Arunjit Parti called him in connection with execution of the Will, one day PC No. 37/09 Pratibha & Ors Vs State & Ors 26/32 prior to the execution but he was not assured and again changed the answer. He admitted that he has no relations with the deceased/testator. He admitted that on 17.08.2008 it was Raksha Bandan. He does not know where the Will Ex. PW-1/108 was drafted, whether the will was registered or not and he does not who got typed the Will Ex. PW-1/108.
54 The analysis of testimony of PW-2 Sh. Ashok Vij deposed that he has made wrong statement with regard to relations or acquittance with the deceased/testator Sh. Omkar Bahadur Parti in Para 2 of his affidavit Ex. PW-2/A where he deposed that deceased/testtor was his friend, however, in witness box during cross-examination he changed and deposed that his father is thick friend of deceased/testator and not he. He categorically admitted with regard to the fact that he knew only petitioner Ms Pratibha and respondent no. 3 Sh. Arunjit Parti who is LIC agent clearly established that Sh. Ashok Vij has no relations either with the deceased/testator or his other family members except petitioner no. 1 Ms Pratibha and respondent no. 3 Sh. Arunjit Parti.
55 It is surprising that when he has visited the house of the deceased/testator he has no knowledge whether his wife was alive or not. He admitted that he has no relations with the family members of the deceased and he was called by Sh. Arunjit Parti, respondent no. 3. PW-2 specifically deposed that he has no connection or relations with the deceased Omkar Bahadur Parti. However he was well known to respondent no. 3, Sh. Arunjit Patri, who his LIC agent.
PC No. 37/09 Pratibha & Ors Vs State & Ors 27/32 56 The testimony of PW-2 further proved that he has been called by Sh. Arunjit Parti, respondent no. 3 and not by deceased/testator. PW-2 Sh. Ashok Vij is not a natural attesting witness but he has been brought by respondent no. 3 Sh. Arunjit Parti. It established that deceased testator never desired to call PW-2 Sh. Ashok Vij as attesting witness. This fact raises grave suspicion about the natural, genuine and attesting witness of the will executed by deceased Omkar Bahadur Parti.
57 It is pertinent to mention here that PW-2 Sh. Ashok Vij had no knowledge who had drafted the will, where the will was drafted and who had typed the will Ex. PW-1/108. He did not made any efforts to know about these very crucial facts. Petitioners also not brought on record the facts, how and when deceased Omkar Bahadur Parti, who was about 84 years old got typed and drafted the will. The will Ex. PW-1/108 is silent about the draftsman of the Will. It also created grave suspicion about the true facts whether deceased/testator had got himself typed and drafted the Will, when and where.
58 PW-1 Ms Pratibha also appeared in witness box and during her detailed cross-examination she is also not sure about the drafting and typing of the will, however, at one point of time she deposed that she came to know about the Will after the death of deceased/testator on 1.12.2008 and at the same breath she deposed that her father had disclosed her about the execution of the will prior to his death.
59 I have gone through the Will Ex. PW-1/108 it contains two pages. It is typed on plain papers. However the date is PC No. 37/09 Pratibha & Ors Vs State & Ors 28/32 written with the hand 17.08.2008. During the course of arguments it has been vehemently argued by counsel for respondent no. 2 & 4 that the exclusion of wife by the deceased/testator raises suspicious circumstances because she was alive. I find substance in the argument. It is natural that if any husband excluded his wife then either the relations were not cordial or give some substantive reason for exclusion of the wife in the Will. The will also failed to describe about the very vital fact, whether the wife is alive or not on the day of execution of the Will. Prudent husband shall always protect the interest of his wife and create life interest if not transfer the rights, however, it is surprising phenomena in the Will Ex. PW-1/108 where deceased/testator has not mentioned about his living wife and without mentioning any reason for exclusion. It creates grave suspicious circumstances which are not dispel by the petitioners.
60 It is pertinent to mention here that throughout the trial petitioner no. 1 Ms Pratibha harp upon the fact that petitioner no. 2 Sh. Arvind Kumar Parti is of unsound mind. However, as per certified copy of the judgment Ex. R2W1/1 filed on record, the case filed by petitioner no. 1 under Section 53 of Mental Health Act was dismissed, although appeal is pending in the Hon'ble High Court.
61 A letter also put to the respondent no. 2 alleged to be written by deceased with regard to mental retardation, unsound condition of Arvind Kumar Parti to Doordarshan, however, it is strange why deceased testator has not mentioned this important fact in the Will, that Sh. Arvind Kumar Parti, petitioner no. 2 is of unsound mind. He has not described his mental condition. It also raises grave suspicion about the genuineness of the will.
PC No. 37/09 Pratibha & Ors Vs State & Ors 29/32 62 It is pertinent to mention here that there is a judicial order on the mental health of the Arvind Kumar Parti and there is nothing proved on record contrary to the said finding of the competent court of law.
63 It is pertinent to mention here that respondent no. 3 Sh. Arunjit Parti has not contested the petition and filed no objection. However, during the trial after seeking permission he appeared as witness. He filed affidavit Ex. R3W1/A. Interestingly, he has introduced another story beyond the pleadings of the parties that on 01.12.2008, on the day of death of father, all the five children of Omkar Bahadur Parti sit together after performing the last rites and the facts about the execution of the Will dated 17.08.2008 Ex. PW-1/108 disclosed to all family members and nobody opposed. He also explained that due to accident the deceased/testator was died at AIIMS Trauma Center. Police also made enquries and thereafter handed over the body. He also tried to cover up Sh. Ashok Vij, and deposed that the father of Ashok Vij, Sh. Rajpal Vij, Sh. Sita Ram Kapoor and deceased were closed friends. He also made attempt to brought on record about the mental health of Sh. Arvind Kumar Parti and his treatment.
64 In the detailed cross-examination he was not able to explain about the deposition of division of assets and liabilities after the death of deceased/testator. He admitted that Sh. Ashok Vij is his friend and also his Development officer which further corroborates the fact that attesting witness, Sh. Ashok Vij is introduced by respondent no. 3 and not by his deceased father. He admitted that a petition was filed in Tis Hazari Courts under the Mental Health Act by petitioner no. 1 and same was PC No. 37/09 Pratibha & Ors Vs State & Ors 30/32 dismissed by the then Ld. District Judge and appeal against said petition is still pending in High Court.
65 The testimony of R3W1 establish that respondent no. 3 chose to appear in witness box in order to support PW-1 Ms Pratibha and PW-2 Sh. Ashok Vij but his support proved to be contrary and raises grave suspicion about his role as alleged by respondents in the execution of the Will. His story with regard to talk of division of assets and liabilities and disclosure of will on 01.12.2008 after performing last rites seems to be false story. It also raises suspicion about the existence of the Will dated 17.8.2008 as alleged by petitioner no. 1 and respondent no. 3. The testimony of respondent no. 3 further darken the suspicious circumstances and also indicates his role in introducing Sh. Ashok Vij as attesting witness being his friend.
66 Petitioners relied on judgment of Jagdish Prasad Vs State, FAO (OS) 355/2008. I have gone through this judgment, in this judgment Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act have been discussed but in this case also same provisions have been discussed and applied.
67 Another judgment relied by the petitioners is Anita Khosla Vs State & Ors, 173 ( 2010) Delhi Law Times 290, Delhi High Court. This judgment is distinguishable in the present facts and circumstances of the case as all the material brought on record discussed in detail which created suspicious circumstances on the execution of the Will and are not dispel by the petitioners.
PC No. 37/09 Pratibha & Ors Vs State & Ors 31/32 68 In view of the strange and peculiar facts as discussed, hereinabove, the exclusion of the wife and non- mentioning of the mental health of the Arvind Kumar Parti, clearly, established grave suspicious circumstances about the execution of the Will by deceased Omkar Bahadur Parti on 17.08.2008.
69 On the basis of the above observation and discussion, it is established that PW-2 Sh. Ashok Vij is not a genuine and natural attesting witness and the Will Ex. PW-1/108 is surrounded by grave suspicious circumstances and the contents of the will also indicates that it may be possible that the Will Ex. PW-1/108 came into existence after the death of deceased. Hence the Will Ex. PW-1/108 dated 17.08.2008 as per testimony of PW-2 Sh. Ashok Vij is not a genuine and last Will of the deceased/testator Omkar Bahadur Parti, therefore issue no. issue no. 3 dated 10.09.2010 and issue no. 1 & 2 of dated 21.05.2014 are decided against the petitioners and in favour of respondent no. 2 & 4.
70 Relief In view of findings on issues, the petitioners are not entitled to any relief and petition filed by the petitioners is dismissed. No order as to cost. File be consigned to record room.
SANJAY Digitally signed by
SANJAY KUMAR
KUMAR Date: 2018.08.24
22:18:18 +0530
(Announced in the open (SANJAY KUMAR)
court on 24th August,2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 37/09 Pratibha & Ors Vs State & Ors 32/32
PC No. 37/09 Pratibha & Ors Vs State & Ors 33/32