Delhi District Court
Virendra Katyal vs State Of Delhi on 1 February, 2018
IN THE COURT OF SH. SANJAY KUMAR: ADDL.
DISTRICT JUDGE, (WEST)-02, TIS HAZARI COURTS:DELHI.
Probate Case No.- 48/09
New P.C. No. 16067/16
Virendra Katyal
S/o Late Sh. Madan Mohan Katyal
R/o D-25, Daya Nand Nagar
Ghaziabad. . . . . Petitioner
Vs.
State of Delhi
Through Lieutenant
Governor Delhi . . . .Respondent
Date of institution of the case : 03.11.2009
Date reserved for judgment on : 20.01.2018
Date of pronouncement of judgment: 01.02.2018
JUDGMENT:
1. A petition under Section 276 of the Indian Succession Act, 1925 (Act XXXIX of 1925) for grant of Probate/Letter of administration of the Will dated 09.12.1993 of Late Smt. Inder Kaur, wife of Late Shri Amar Nath Katyal has been filed.
2. In brief the facts are that petitioner is the grandson of Smt. Inder Kaur, wife of Late Sh. Amar Nath Katyal (hereinafter referred to as "deceased"), who expired on 05.05.1998 at D-25, Daya Nand Nagar, Ghaziabad. It is stated that deceased had purchased a house built on Plot No. 4 situated in the area of Village Tihar now known as Ugrasen Market, out of Khasara No.328/8, Khewat No. 68/9 registered under Volume No.1 Book PC No. 48/09 & Virendra Katyal Vs State 1/45 New No. 16067/16 No. 1102 pages 43 to 45 at No. 1514 registered on 15.01.1969 on 10.07.1969 bounded as "House No. WZ-22, Ugrasen Market, Tilak Nagar, Delhi" (hereinafter referred to as "subject property"). It is further stated that deceased during her life executed her last Will dated 09.12.1993 duly entered in Book No. III Volume No. 73 registered on 10.12.1993 with the Sub-Registrar, Ghaziabad and by virtue of said Will, the petitioner gets exclusive right over the property mentioned above and right to get ownership over the property. It is stated that the subject property situate within the jurisdiction of this Court, hence this Court has jurisdiction over the subject matter and that the value of the property that the petitioner is likely to get is about Rs. 10,00,000/-.
3. It is stated that at the time of her death, the deceased left behind the following legal representatives besides the petitioner :-
1. Shri Madan Mohan Katyal Son (already expired on 30.09.1986)
2. Smt. Krishna Katyal Daughter-in-law W/o. Late Shri Madan Mohan Katyal (already expired on 02.02.2004)
3. Smt. Sushma Juneja Daughter W/o. Shri K. L. Juneja
4. Smt. Sharda Sehgal Daughter W/o. Shri P. P. Sehgal It is stated that both the daughters of deceased i.e. Smt. Sushma Juneja and Smt. Sharda Sehgal relinquished their rights in the subject property in favour of the petitioner.
Petitioner seeks for grant of Probate of the Will dated 09.12.1993 executed by the deceased Late Smt. Inder Kaur.
PC No. 48/09 & Virendra Katyal Vs State 2/45 New No. 16067/16
4. Upon filing of petition, notices were issued to all the legal heir of the deceased, respondent, State through collector and citation to general public got published in daily newspaper "Dainik Jagaran" dated 20.02.2010.
5. The valuation report in respect of immovable property was called from the concerned SDM/Tehsildar/Executive Magistrate, Rajouri Garden, Delhi which was filed in respect of property bearing No. House No. WZ-22, Ugra Sen Market, Tilak Nagar, New Delhi-110018 and assessed the value of the same as Rs. 1,58,38,080/-.
6. Objector Smt. Sharda Sehgal, daughter of deceased and sister of petitioner filed objections to the petition and taken preliminary objection that the present petition based on the alleged Will dated 10.12.1993 is liable to be dismissed as the same is barred by limitation. It is stated that the alleged Will is dated 10.12.1993 whereas present petition is filed in the year 2009 i.e. after 11 years which leads to suspicious circumstances and there is no explanation why the alleged Will has been set up for the first time after more than 11 years. It is further stated that the petitioner since the demise of deceased and till the filing of the instant petition has never claimed or declared that the deceased had ever revoked her previous Will dated 21.10.1993 and had executed a fresh Will in favour of the petitioner. It is further stated that the deceased was not a well educated lady and was capable of understanding Gurumukhi and Hindi whereas the alleged Will is in English language which she could not comprehend or understand. It is stated that the petitioner being the propounder is personally involved in the execution of the PC No. 48/09 & Virendra Katyal Vs State 3/45 New No. 16067/16 alleged Will as the contents stated therein confer a substantial benefit on him.
7. It is stated that the Will dated 21.10.1993, the deceased made provisions for all her legal heirs whereas the alleged Will is one sided and that the deceased during her life time had been residing either with the applicant at her Faridabad residence or would be visiting regularly to her second daughter for month. It is further stated that it is they who had been taking care of her financially as her own son died in the year 1986 and the deceased would only reside or visit the petitioner rarely for six months in a year or she would either stay with her daughters in Faridabad or at U.K. It is further submitted that the mother of the objectors had equal love and affection for her children and there was no material one record to show that deceased was in any manner displeased or unhappy with her daughters and as such she would not have completely disinherited them and this feature renders the alleged execution of the Will by her as highly suspicious and unnatural.
8. It is stated that the deceased executed a Will dated 21.10.1993 registered with Registrar, Ballabhgarh wherein she have details of her all movable and immovable properties and giving equal shares to all her legal heirs including the petitioner. It is further stated that what made the deceased to execute the alleged Will just after three months and in total contrast to the previous registered Will and not giving any right or share to the daughters and granting all her right / share exclusively in favour of the petitioner with respect to subject property. It is stated that these circumstances are suspicious circumstances as they give PC No. 48/09 & Virendra Katyal Vs State 4/45 New No. 16067/16 rise to doubts that the alleged Will is not genuine as the same had been propounded by the petitioner by undue influence, fraud and coercion over the deceased. It is stated that the attesting witnesses are not known people but are strangers to the family and are close friends of the petitioner who have in connivance with the petitioner fabricated and forged the alleged Will. It is stated that the witness of the alleged Will Sh. Sunil Dhingra is the neighbour and a dear friend of the petitioner and not an independent person.
9. On merit all the contents of the petition are denied and it is stated that the deceased left behind the following legal heirs :-
1. Smt. Sushma Juneja - Daughter
2. Smt. Sharada Sehgal - Daughter
3. Sh. Virender Katyal - Grandson
4. Smt. Krishna Katyal - Daughter-in-
(W/o. Late Sh. M. M. Katyal) law
5. Ms. Renu Mehra - Grand
(D/o. Late Sh. M. M. Katyal) daughter
It is stated that objectors have a substantial legal right in the immovable property i.e. subject property as per the registered Will dated 10.12.1993 which is a forged and fabricated document of the deceased testator. It is prayed that the present petition for grant of Probate based on the alleged Will dated
10.12.1993 is liable to be dismissed.
10. Objector Sushma Juneja filed objections to the instant petition stating that Late Smt. Inder Kaur Katyal died on PC No. 48/09 & Virendra Katyal Vs State 5/45 New No. 16067/16 05.05.1998 and her husband Late Sh. Amar Nath Katyal died on 19.12.1979. Deceased had three children namely Sh. Madan Mohan Katyal (son), Smt. Sushma Juneja (daughter) and Smt. Sharda Sehgal (daughter). It is stated that in the year 1986, Sh. Madan Mohan Katyal died on a motor accident leaving behind his wife Smt. Krishna Katyal, a son Sh. Virender Katyal (petitioner herein and a daughter. It is further stated the deceased during her lifetime executed a registered Will dated 21.10.1993 as per schedule given by objector Smt. Sushma Juneja in para no. 1 of the objections filed by her.
11. It is further stated that during her time, Late Smt. Inder Kaur Katyal owned number of movable or immovable properties in her name which are stated herein below :-
1. House No. WZ-22, Ugrasen Market, Tilak Nagar, Delhi admeasuring 315 Sq. yds. The said property comprises of five shops, seven rooms, two toilets, two kitchens, gallery and verandah on back side on the ground floor with one latrine were in the possession of Late Smt. Inder Kaur Katyal which were used by her daughters and their family members.
2. WZ-139/1, New Mahabir Nagar, Extension, C-
Block, Nangloi Jalab, New Delhi built up in 166 sq. yds.
3. Plot bearing Khasra No. 377/1 measuring 2bighas, 1 biswas situated in Village Hailod Pur ( Najafgarh) Block. Now divided into two parts bearing No. 24/9 and 24/10.
PC No. 48/09 & Virendra Katyal Vs State 6/45 New No. 16067/16
12. It is stated that with respect to movable properties, Late Smt. Inder Kaur Katyal was in possession of cash, jewellery and fixed deposit receipts. It is further stated that as per Will dated 21.10.1993, all the legal heirs including the petitioner have acted upon as per the terms stated therein and legal heirs have encashed the Fixed Deposit receipts and have taken their respective share with respect to the cash lying in the bank accounts of the deceased. It is further stated that except the deceased last wish to sell the subject property and the sale proceeds to be shared equally among all the legal heirs, all the conditions have been fulfilled by the beneficiaries. She has denied all the contents of the petition and reiterated the averments made by another objector Smt. Sharda Sehgal as discussed above and for the sake of brevity, the same has not been discussed again here.
13. In the reply to the objections filed by the objector by Smt. Sushma Juneja, petitioner has denied the contents of the objections and reiterated the averments made in the petition.
14. Objector Smt. Sushma Juneja filed replication to the reply filed by the petitioner to the objections filed by her denying the contents of the reply to the objections and reiterating the averments made in her objections.
15. On the pleading of the parties following issues were framed by my ld. Predecessor vide order dated 24.10.2011 :-
1. Whether the present petition is barred by period of limitation ? OPP PC No. 48/09 & Virendra Katyal Vs State 7/45 New No. 16067/16
2. Whether the plaintiff is entitled for Probate of the Will dated 09.12.1993 as prayed for ? OPP
3. Relief
16. In support of averments made in the petition, petitioner examined PW1 Sh. Kanishka Kumar, Registration Clerk from the Office of the Sub Registrar-I, Ghaziabad, U.P.; himself as PW2; and PW3 Sh. Sunil Dhingra, an attesting witness. Thereafter, ld. Counsel for petitioner closed the evidence of the petitioner vide a separate statement. Objector Smt. Sushma Juneja examined herself as RW1 and vide a separate statement dated 12.10.2015 counsel for petitioner has closed the evidence of the objector.
17. PW1 Sh. Kanishka Kumar, Registration Clerk from the Office of the Sub Registrar-I, Ghaziabad, U.P. proved registration of the Will dated 10.12.1993 Ex. PW1/A vide registration No. 330 Book No.3 Volume 73 page nos. 183-186 dated 10.12.1993 and stated that the said Will is correct as per the record brought by him. In the cross-examination, he stated that he does not have any personal knowledge about this case and the registration of the said Will was done in his presence.
18. PW2 Virendra Katyal, the petitioner has tendered his affidavit Ex. PW2/1 in evidence reiterating the averments made in the petition and proved documents i.e. original Will dated 10.12.1993 executed by the deceased as Ex. PW1/A; the copy of the sale deed dated 10.07.1969 (OSR) as Ex. PW2/B; the copy of the death certificate of Smt. Inder Kaur Katyal as Ex. PW2/C; the copy of the death certificate of S. Madan Mohan Katyal as Mark PC No. 48/09 & Virendra Katyal Vs State 8/45 New No. 16067/16 'A'; and the relinquishment deed executed by Smt. Sushma Juneja and Smt. Sharda Sehgal in favour of the petitioner as Ex. PW2/E (colly).
19. In the cross-examination, he deposed that he is a graduate and staying in Ghaziabad since 1975-76 and stayed in a house at Tilak Nagar when he was a kid. I admitted that his grandmother used to stay in the house bearing No. WZ-22, Ugrasen Market, Tilak Nagar, Delhi and voluntarily deposed that uptil the year 1986, his grandfather was not alive in the year 1986 and died in the year 1980, the exact date of which he does not remember. He admitted that since the year 1980 till the year 1986, his grandmother was staying alone in the house at Tilak Nagar and voluntarily deposed that he used to go to meet her. He deposed that he was aged 19 years in the year 1980 and admitted that his grandmother Late Smt. Inder Kaur was the owner of the subject property.
20. He further deposed that his grandmother was also owning other properties as mentioned in the Will Ex. PW1/A apart from the subject property had been sold by his grandmother during her lifetime. He cannot tell as to when she had sold the said properties. He deposed that the other two properties as mentioned in the Will belonging to his grandmother apart from the above said property were WZ-139/1, New Mahavir Nagar Extension, C-Block, Nangloi Jalab, New Delhi and a plot bearing Khasra No. 377/1 measuring 2 Bighas 1 Biswas situated in Village Hailod Pur (Gajafgarh) Block, New Delhi.
PC No. 48/09 & Virendra Katyal Vs State 9/45 New No. 16067/16
21. He further deposed that his father had died in the year 1986 and denied that from the year 1986 till her death in the year 1999, his grandmother was residing at Ghaziabad alongwith him and not in the property at Tilak Nagar, New Delhi. He admitted that the other two properties mentioned in the Will Ex. PW1/A apart from the subject property had not been sold by his grandmother at the time of executing the Will in December, 1993. He denied that his grandmother had not sold the other two properties mentioned in the Will apart from the subject property during her lifetime. He deposed that his grandmother used to speak in Hindi and Punjabi languages and could understand the English language. He deposed that his grandmother used to write in Punjabi as well as in Hindi language and he can recognize the signature of his grandmother Late Smt. Inder Kaur.
22. He admitted that the letter Ex. PW2/O1 is in the handwriting of his grandmother. He deposed that the Will Ex. PW1/A has been got written by his deceased grandmother through an Advocate who had been caller by her and the Will had been got drafted by his grandmother at her home which had subsequently been got typed by the Advocate and which had then subsequently been registered with the Sub Registrar. He deposed that the attesting witnesses to the Will are known to him and both the attesting witnesses are his family friends, one of whom had been called by his grandmother and the other by him at that time. He deposed that his grandmother had called the attesting witness Sh. Sunil Dhingra at that time and he had himself contacted him on phone on behalf of his grandmother at that time.
PC No. 48/09 & Virendra Katyal Vs State 10/45 New No. 16067/16
23. He further deposed that his grandmother was having two other children apart from his father, who were her daughters. And during the period 1986 till her death, his grandmother used to visit and reside with her two daughters also. He further deposed that his grandmother had also gone to London, U.K. to visit and reside with one of her daughter living there.He deposed that his grandmother, his father, his aunts and he himself were having very cordial relations between them. He admitted that his grandmother had mentioned to him about execution of another Will by her and he cannot say whether this fact had been mentioned by her to him prior to the execution of the Will dated 21.10.1993. He denied that he was aware of the Will dated 21.10.1993 executed by his deceased grandmother whereby she had bequeathed all her properties in equal shares to all her legal heirs i.e. two daughters and the petitioner.
24. He further denied that his grandmother had never called any Advocate to draft or prepare the alleged Will dated 09.12.1993 and that she had never called for any attesting witnesses to attest it. He further denied that the alleged Will dated 09.12.1993 had never been registered before the Sub- Registrar and he knew Sh. R. K. Mahendru and Sh. Raju Malhotra being their neighbours and Sh. R. K. Mahendru is also their distant relative. He cannot say whether Sh. Bharat Bhushan Gupta, Advocate is known to him or not. He deposed that his grandmother was also having movable assets like bank accounts, cash, jewellery, etc. He cannot say as to what happened to her movable assets after her death. He deposed that his mother used to handle the same and his mother had never informed him about them.
PC No. 48/09 & Virendra Katyal Vs State 11/45 New No. 16067/16
25. He admitted that the subject property is still in the name of his grandmother and he had not got the same entered in his name with the concerned authority as he was not residing in India and had come back only in the year 2009 and he can identify the signatures of his grandmother. He admitted that document Ex. PW2/O2 is bearing the signatures of his grandmother at point 'A' thereon. He cannot say whether letter Mark 'A' is in the handwriting of his grandmother or not. He deposed that it not in his knowledge as to whether his grandmother was having any other properties apart from as mentioned in the Will dated 09.12.1993 Ex. Pw1/A. He cannot say whether his deceased grandmother was having any property in Sunder Vihar near Paschim Vihar, Delhi or not. He denied that he had any knowledge of the said property and that the same had been sold by his deceased grandmother during her lifetime and the proceeds divided equally between her three children and that his father had received his part of the sale proceeds.
26. He deposed that cannot say as to whether the signature at point 'A' on Mark 'A' is of his grandmother or not. He deposed that he had been told by his deceased grandmother at the time of execution of her Will dated 09,12,1993 that she had earlier executed a registered Will. He further deposed that his father and his two sisters were having cordial relations. He deposed that that subject property is rented out and the tenants had been inducted by his grandmother. He further deposed that the rental income from the said property after the death of his grandmother were being received earlier by his mother and after her death in the year 2004, the same is being received by him. He deposed that there is no document executed during the PC No. 48/09 & Virendra Katyal Vs State 12/45 New No. 16067/16 lifetime of her grandmother that the rental income of the said property after the death of her grandmother would be received by his mother and thereafter by him.
27. He admitted that his grandmother had agricultural properties in Hissar and she used to take care of the same and the said properties were now in his name by way of registry and he can show the registered documents. He denied that he had got executed registered documents in respect of the agricultural properties situated in Hissar of his deceased grandmother in his favour fraudulently. He cannot say whether his deceased grandmother could not read Gurumukhi and English and could read only Hindi language or not. He denied that he had not applied for Probate of the Will dated 09.12.1993 Ex. PW1/A intentionally immediately after the death of his deceased grandmother and had done so byway of present proceedings in the year 2009 since the same are false and fabricated on his part.
28. He further deposed that an amount of Rs. 500/- each per month had been paid by his mother to his aunts after the death of his grandmother as per the requirement of the Will dated 09.12.1993 Ex. PW1/A however the said amount has not been paid to his aunts under the said Will after the death of his mother. He admitted that Sh. Vinay Chandra and Sh. Sunil Dhingra are not his immediate neighbours and that Sh. R. K. Mahindru was living near his house. He denied that his deceased grandmother w.e.f. October 1993 to February 1994 was residing at Faridabad and he can say this as she was residing at his house at Ghaziabad during the said period.
PC No. 48/09 & Virendra Katyal Vs State 13/45 New No. 16067/16
29. He further deposed that his deceased grandmother was visiting her daughter residing at Faridabad. He denied that he used to visit his grandmother at Tilak Nagar house since the year 1980 till the year 1986 and that his deceased grandmother had not spoken to Sh. Sunil Dhingra, an attesting witness at that time. He further denied that his deceased grandmother had not executed the Will dated 09.12.1993 and that she had not visited the Sub-Registrar office for execution of the Will on 09.12.1993 in the afternoon. He further denied that the Will dated 09.12.1993 Ex. PW1/A is a false and fabricated document.
30. PW3 Sh. Sunil Dhingra deposed that he is an attesting witness of the Will dated 09.12.1993 and he had filed his evidence by way of affidavit Ex. PW3/1 bearing his signatures at points A and B. He proved Will already Ex. PW1/1 executed by the deceased Smt. Inder Kaur bearing his signature at point 'C' and also bearing the signature of the deceased at point A to A-1. He deposed that he, the deceased and the second witness to the Will had signed the said Will in the presence of each other and the said Will was registered with the Sub-Registrar Ghaziabad on 10.12.1993.
31. In the cross-examination, he deposed that he knew the petitioner since childhood and he was a good family friend of the petitioner and he knew the deceased personally and he was personally present while the Will dated 09.12.1993 was being drafted. He further deposed that he is not aware whey the Will dated 21.10.1993 was revoked. He denied that Will dated 09.12.1993 is a forged and fabricated Will. He deposed that in the presence of Sh.Vinay Chandra, the Will dated 09.12.1993 was PC No. 48/09 & Virendra Katyal Vs State 14/45 New No. 16067/16 executed, who is also a very good friend of the petitioner. He denied that he and Sh. Vinay Chandra being good friends of the petitioner are hand in gloves with the petitioner. He does not remember the date of death of the testatrix. He does not know Sh. Surender Gandhi, Advocate personally, who drafted the Will however he was present when the Will dated 09.12.1993 was being drafted. He does not remember when the Will was registered. He deposed that he was one of the attesting witnesses of the said Will dated 09.12.1993. He admitted that the Will dated 09.12.1993 was granted only in favour of the petitioner out of sheer love for the petitioner. He deposed that the testatrix was aware about the English language.
32. He deposed that he has been living in Ghaziabad since the year 1961 and Late Smt. Inder Kaur had three children. He was aware of only the name of father of the petitioner but he is not aware of the names of other children of Late Smt. Inder Kaur. He further deposed that since 1971-72, he knew the family of the petitioner including his late father and Late Smt. Inder Kaur, who used to reside at the residence of petitioner and also sometimes resided at the property at Tilak Nagar, Delhi. He was not aware whether Late Smt. Inder Kaur had executed any Will prior to the present Will in question of any Will thereafter. He deposed that petitioner had also not informed him of the execution of any Will by late Smt. Inder Kaur.
33. He deposed that he is having a business of tents and decoration and he is educated till inter (class 12 th) and he can understand Hindi but he is not fluent in English language. He deposed that as per his knowledge, late Smt. Inder Kaur was able PC No. 48/09 & Virendra Katyal Vs State 15/45 New No. 16067/16 to read and write English language and he had seen her reading English newspaper. He further deposed that on the day of registration of the Will, though he does not remember the exact date of execution of the said Will but it was somewhere in the year 1993, Smt. Inder Kaur had called him through Sh. Virender Kaytal to sign the said Will. He does not remember the date when he was called by the petitioner. He further deposed that the petitioner had telephoned him on that day and he does not remember his telephone number prevailing at that time.
34. He deposed that the Will in question was written before him and not at the time when the petitioner had called him. He further deposed that on reaching the house of petitioner, he first met with the petitioner and then he was taken by the petitioner to Late Smt. Inder Kaur and the Will in question was written in the house of Late Smt. Inder Kaur. He further deposed that at the time of execution of the said Will, he alongwith other attesting witness namely Sh. Vinay Chandra, mother of the petitioner, petitioner's wife and the lawyer namely Sh. Surender Gandhi were present. He is not aware how and in what manner Sh. Vinay Chandra was called. He admitted that Smt. Inder Kaur had not called him to attest the Will in question. He cannot say whether the Will in question was handwritten or typed.
35. He further deposed that the age of Late Smt. Inder Kaur would be about 80 plus at the relevant time. He does nor remember the exact date of death of Late Smt. Inder Kaur but it must be 5-6 years after the execution of the Will in question. He again said, in the year 1998-99. He deposed that Sh. Vinay PC No. 48/09 & Virendra Katyal Vs State 16/45 New No. 16067/16 Chandra also resides at Ghaziabad and he is known to him for the last 20 years. He further deposed that he is not aware why he was being asked to witness the Will in question as it was a family matter concerning the petitioner and Late Smt. Inder Kaur.
36. He further denied that the Will in question was not executed before him and that the same was being created and that the signatures of Late Smt. Inder Kaur were forged. He further denied that Sh. Vinay Chandra was not present at the same time when he was present to attest the Will in question by late Smt. Inder Kaur. He was not aware whether Late Smt. Inder Kaur was suffering from any ailment but whatever the old age ailments may be there. He denied that Late Smt. Inder Kaur had knee problem and had difficulty in walking. He deposed that though he does not remember exactly who all were present at the office of the Sub Registrar but as far as he remember he was present alongwith Sh. Vinay Chandra, petitioner and Smt. Inder Kaur and mother of petitioner. He deposed that at about 12.00 Noon to 1.00 PM, they reached there but he does not remember the day.
37. In further cross-examination he deposed that after execution of the Will in the year 1993, he had met the deceased number of times and he is not aware if the deceased had visited U.K. but as far as he remember she never visited U.K. after the year 1993. He does not know who had the copy of the Will in question. He deposed that he knew the person namely Sh. R. K. Mahendru as he is related to the petitioner and also he is residing near the house of the petitioner and Late Smt. Inder Kaur. He further deposed that he also knew sh. Raju Malhotra, who is also PC No. 48/09 & Virendra Katyal Vs State 17/45 New No. 16067/16 residing in the neighbourhood of the petitioner. He deposed that Sh. R.K.Mahendru had expired and Sh. Raju Malhotra has shifted his residence somewhere in Noida and he has not met him since long.
38. He further deposed that he had visited Tilak Nagar once and he had seen the property of Late Smt. Inder Kaur and he was not aware how and in what manner, Sh. Surender Gandhi, Advocate was called at the time of execution of the Will. He deposed that he had met Sh. Surender Gandhi, Advocate prior to the said date also and he was not aware whether Sh. Vinay Chandra also knew Sh. Surender Gandhi, Advocate. He deposed that he was not aware whether Smt. Inder Kaur was having any business of her own or was working anywhere and whether Smt.Inder Kaur was able to read and write in Gurumukhi language but he is aware that she used to speak in Punjabi.
39. He denied that Late Smt. Inder Kaur could read and write in Gurumukhi language and that She was not able to read or understand English language. He deposed that at the time of execution of the Will, Late Smt. Inder Kaur had gone through the contents of the Will in question on her own and subsequently before the Sub Registrar also, the contents of the Will were explained to her. He denied that the Will in question was forged and fabricated by him, the petitioner and Sh. Vinay Chandra and that there exists another registered Will of Late Smt. Inder Kaur in October, 1993.
40. Respondent No.2/objector Smt. Sushma Juneja examined herself as RW1 and tendered her evidence by way of PC No. 48/09 & Virendra Katyal Vs State 18/45 New No. 16067/16 an affidavit Ex. RW-1/A (wrongly typed as Ex. RW-2/A) and proved upon documents already exhibited as Ex. PW-2/02 and PW-2/01 and also proved a letter dated 11.12.1989 as Ex. RW-1/01. She has reiterated the averments made and objections taken in the objections filed by her.
41. In the cross-examination, she admitted that on 21.10.1993 when the Will of Late Smt. Inder Kaur was executed she was present in India at Faridabad. She deposed that she had not gone with her mother to the Sub-Registrar's office for the registration of the Will dated 21.10.1993 and she does not know whether her mother had informed the petitioner that she was going to the Sub-Registrar's office for the registration of the Will dated 21.10.1993. She cannot say that prior to 21.10.1993, she was present in India and for how long and voluntarily deposed that she used to come for 4 to 6 weeks and she can only say after seeing her passport. She cannot say that her mother had written in any of the letters prior to execution of the Will dated 21.10.1993 informing her that she will execute the said Will. She cannot say for how long in a year her mother used to stay at Faridabad wit her sister. She does not know who had been the witnesses to the said Will and voluntarily deposed that her mother had coordinated with the writer of the Will which she is not aware of.
42. She deposed that her mother used to stay at Uttam Nagar prior to her brother's death but after his death, his sister- in-law wanted her mother to stay with her at Ghaziabad so she used to visit Uttam Nagar on and off and would be residing at Ghaziabad. He admitted that she cannot say whether her mother PC No. 48/09 & Virendra Katyal Vs State 19/45 New No. 16067/16 resided at Faridabad or Ghaziabad as she has been resident of U.K. bit she knew of them as she used to speak to her once a week. She admitted that she does not know whether witnesses Sh. Onkar was known to her mother as she does not know him but she knew that her mother knew Sh. Bharat Bhushan and even she knew him. She deposed that Sh. Bharat Bhushan was a lawyer and he is no more. She does not know the exact address of Late Sh. Bharat Bhushan but he was residing in Sector-11, Faridabad. She deposed that presently, she is retired but she used to work for Department of Self Social Security as an Inspector in U.K. and is a law graduate.
43. She deposed that Late Smt. Krishna Katyal was her mother's daughter-in-law and Ms. Renu Mehra is her mother's grand daughter. She deposed that as far as she knew her mother had good relationship with Smt. Renu Mehra like she had with other grand children and that the reason for stating that the Will Ex. PW-1/A dated 09.12.1993 is forged is that prior to this date two months she had executed Will Ex. PW-2/02 and having good relations with her daughters she could not have executed another Will. She further deposed that she became aware of the Will dated 09.12.1993 only after receiving summon from this Court at her house on London in the year 2009 and she did not file any case for the cancellation or declaring the Will dated 09.12.1993 as null and void but she had filed the objections in the present case and no criminal case also filed against the petitioner by her.
44. She deposed that the witness is shown Ex. PW-1/A at point A which bears the signatures of her mother and again said, PC No. 48/09 & Virendra Katyal Vs State 20/45 New No. 16067/16 she is not sure. She denied that after the death of her father in the year 1979, her mother used to reside most of time at Ghaziabad. She admitted that after the death of her brother in the year 1986, her mother most of time resided at Ghaziabad. She deposed that her mother never mentioned about the name of Sh. Vinay Chandra and Sh. Sunil Dhingra during her lifetime to her. She admitted that her mother never used to inform about the name of all the neighbours and that neither she nor her sister had applied for the Probate of the Will dated 21.10.1993.
45. She denied that the Will dated 09.12.1993 has description of all the immovable properties of her mother. She cannot stay off hand what all other properties are not mentioned in the Will dated 09.12.1993 but in the Will dated 21.10.1993, the details are given. She denied that her mother had sold all other properties except WZ-22, Ugrasen Market, Tilak Nagar during her lifetime. She cannot say when and how the property bearing No. WZ-139/1, New Mahavir Nagar was sold to by her deceased mother as she had not sold during her lifetime and the same is also her answer with respect to the property i.e. plot bearing Khasra No. 377/1 situated at Village Hailotput (Gajafgarh). She denied that the abovesaid two properties were sold by her mother during her lifetime.
46. She deposed that "suspicious circumstances" means how she can write another Will when she had good cordial relations with her daughters and her mother was not well versed with the English language. She denied that her objections and her affidavit Ex. RW-1/A is wrong and false and she has filed objections only to seek a share in the deceased property.
PC No. 48/09 & Virendra Katyal Vs State 21/45 New No. 16067/16
47. I have heard Sh. H. K. Shekhar, counsel for the petitioner and Ms. Kajal Chandra, counsel for respondent/objector and perused the citation relied by ld. Counsel for the respondent and also perused the record and my findings on issues are as under.
48. Issue No. 1.
Before giving my findings on the above said issue, Let us peruse the law laid down by Appex Court. The question for consideration, is whether the petition for grant of Probate/ Letter of Administration is governed by the provision of Article 137 of the Limitation Act, Came up in the case of "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", (2008) 8 SCC, 463 Supreme Court of India, while answering whether Article of Limitation Act applies to the application for probate held as under "The genesis of Article 137 of the Limitation Act can be traced from Article 181 of the Limitation Act, 1959. The Limitation Act contains different periods for a specified application. Even in the Limitation Act of 1908 where there is no period provided for a specific application, a residuary clause is included providing limitation for other applications. Article 181 of the Limitation Act, 1908 being the residuary clause contemplates the application for which no period of limitation is provided elsewhere in the schedule or by Section 48 of the Code of Civil Procedure, 1908 which was retained in the Limitation Act of 1963 with certain modification, which can be reasonably ascertained from the comparison of two provisions, which are depicted below:
"181. Application for which Three years when the right to period of limitation is pro-apply accrues.
Vided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure,1908.
PC No. 48/09 & Virendra Katyal Vs State 22/45 New No. 16067/16
137. Any other application for Three years when the which no period of right to apply accrues limitation is provided elsewhere in this Division."
Such distinction is well explained by the Hon'ble Supreme Court in case of Kerala SEB Vs.T.P. Kunhaliumma, reported in (1976)4 Supreme Court Cases 634 in these words:-
"18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908 Limitation Act shown that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. The word 'any other application' under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if the applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.
22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a Civil Court. With respect we differ from the view taken by the two-judge bench of this Court in Athani Municipal Council case2 and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 of the 1963 Limitation Act."
Thus, an application under any specified Act before the Civil Court is application conceived under Article 137 of the Limitation Act, 19963 as the distinction, which was sought to be made under Artilce 181 of the Limitation Act, 1908 have been obliterated by deletion and amendment of article 137 of the Limitation Act, 1963. it is no longer res integra that any other applications is not restricted to an application under the Code of Civil Procedure, but an application under special statue being filed before the Civil Court.
PC No. 48/09 & Virendra Katyal Vs State 23/45 New No. 16067/16
49. Hon'ble Supreme Court of India, further in the case of KRISHAN KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) 11 SCC 537, held that Article 137 of Limitation Act is applicable in case of Probate/ Letter of Administration but applicable as per judgment of in case "KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP KUAR", 2008 SCC, (Supra) "16. Rejecting Mr. Dalpatrai's contention. I summarise my conclusion thus-
(a)under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b)the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c)Such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as along as as the right to do so survive and the object of the trust exists or any part of the trust, if created remains to be executed;
(d)the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death.;
(e)delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f)such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates."
Conclusion (b) is not correct while Conclusion (c) is the correct position of law.
PC No. 48/09 & Virendra Katyal Vs State 24/45 New No. 16067/16
50. Ld. Counsel for the petitioner Sh. H.K. Shekhar submits that the present petition is within limitation because the petitioner was staying at England and when return back immediately he has filed the present petition. On the other hand ld. Counsel for objector/respondent Ms Kajal Chandra submits that deceased/testatrix Smt. Inder Kaur Katyal died on 05.05.1998 and present petition filed after ten years. She also referred to the judgment of Kunvarjeet Singh Khandpur (Supra), Virender Katyal Vs. State and submitted that as per Article 137 of Limitation Act, present probate petition is barred by limitation. Ld. Counsel for the respondent also relied on judgment of Yogesh Duggal Vs State, Mool Chand, FAO, 380/832/05 decided on 31.03.2011.
51. I have considered the respective submissions of both the counsels for the parties and perused the record. It is admitted as per record that the present petition filed on 04.11.2009 and deceased/testatrix died on 05.05.1998. The principle of law as per Apex court discussed in above that the limitation Act is applicable in the Probate petition and covered by Article 137. There is no dispute to this legal preposition, however, as per the judgment of Kunvarjeet Singh Khandpur ( Supra) and Krishan Kumar Sharma ( Supra) where it is already held that the date of death is not the starting point for running of the limitation. As per clause (C) the correct preposition of law has been discussed in the light of another principle that the "Hindu" is not required to compulsory applied for probate in Delhi, especially. It is the continuous right which can be exercise any time after the death of deceased.
PC No. 48/09 & Virendra Katyal Vs State 25/45 New No. 16067/16
52. In this case nothing brought on record that after the death of deceased/testatrix there is any challenge to the rights created under the Will in dispute Ex. PW-1/A. The other fact is also brought on record during the cross-examination of PW-1 that he was in the England. The record established that there is challenge to the rights of petitioner as per the Will Ex. PW-1/A of deceased dated 10.12.1993. Therefore, petitioner applied for grant of letter of administration/probate during the surviving of his rights.
53. In view of the above observation and discussion the present petition is within limitation, therefore, issue no. 1 is decided against the respondent/objector and in favour of petitioner.
54. Issue no. 2 In order to decide the above issue, 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 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.
PC No. 48/09 & Virendra Katyal Vs State 26/45 New No. 16067/16 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.
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 PC No. 48/09 & Virendra Katyal Vs State 27/45 New No. 16067/16 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".
21. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
22. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or PC No. 48/09 & Virendra Katyal Vs State 28/45 New No. 16067/16 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."
55. The judgment of the Supreme Court in the case reported as H. Venkatachala Iyangar Vs. B.N. Thimmajamma, AIR 1959 SC 443, is one of the early and celebrated judgments on the subject. After construing, amongst others, the above statutory clauses, the court ruled thus:-
"18... the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the PC No. 48/09 & Virendra Katyal Vs State 29/45 New No. 16067/16 nature of the finding on the question of the proof of wills. It would prima facie be true be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19.... there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified PC No. 48/09 & Virendra Katyal Vs State 30/45 New No. 16067/16 in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt PC No. 48/09 & Virendra Katyal Vs State 31/45 New No. 16067/16 as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
( emphasis supplied)
56. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court.
The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair PC No. 48/09 & Virendra Katyal Vs State 32/45 New No. 16067/16 in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
( emphasis supplied)
57. In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1 SCC 369, after analyzing the ratio in H. Venkatachala Iyangar ( supra), the Supreme Court culled out the following propositions:-
"(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. And subject to the process of the court and capable of giving evidence. (3) Unlike other documents, the will speaks from the PC No. 48/09 & Virendra Katyal Vs State 33/45 New No. 16067/16 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 prsoved to be the last will and testament of the testator. Normally , the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a susbtantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circusmtances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all ligitimate suspicions before the document can be accepted as the last will of the testator.
PC No. 48/09 & Virendra Katyal Vs State 34/45 New No. 16067/16 (5) It is connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. (6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
( emphasis supplied)
58. The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is PC No. 48/09 & Virendra Katyal Vs State 35/45 New No. 16067/16 bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied) PC No. 48/09 & Virendra Katyal Vs State 36/45 New No. 16067/16
59. Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that "(A)ny person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property."
60. In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no PC No. 48/09 & Virendra Katyal Vs State 37/45 New No. 16067/16 categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied)
61. In the recent judgment of Apex court in Jagdish Chand Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle of law laid down are reiterated as under.
"19. The contentious pleadings and the assertions thereupon in the backdrop of the evidence as a whole have been analyzed. The pleading perspective notwithstanding, the purport and play of Section 63 of Indian Succession Act (hereinafter referred to as 'the Act') read with Section 68 and 71 of Indian Evidence Act, 1872 (hereinafter referred to as '1872 Act'), it would thus be apt, nay, imperative to refer to these legal provisions before embarking on the appreciation of evidence to the extent indispensable.
20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act are thus extracted hereunder for ready reference:
20.1 Section 63 of the Act:
63. Execution of unprivileged wills - Every testatrix, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules-
(a) The testatrix shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testatrix, or the signature of the person signing for him, shall PC No. 48/09 & Virendra Katyal Vs State 38/45 New No. 16067/16 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 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 PC No. 48/09 & Virendra Katyal Vs State 39/45 New No. 16067/16 on his direction. Further, the signature or mark of the testatrix or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as will. The section further mandates that the will shall have to be attested by two or more witnesses each of whom has seen the testatrix sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testatrix, or has received from the testatrix, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the will in the presence of the testatrix. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.
22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a will under the Act are mandatory in nature, so much so that any 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 PC No. 48/09 & Virendra Katyal Vs State 40/45 New No. 16067/16 provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence. 22.3 Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of 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."
PC No. 48/09 & Virendra Katyal Vs State 41/45 New No. 16067/16
62. The burden of proof of issue no. 2 is on the petitioner who examined PW-3 Sh. Sunil Dhingra, one of the attesting witnesses. The detail testimony of the same has been discussed herein above. The testimony of PW-3 Sh. Sunil Dhingra established the he was known to the petitioner since childhoold and good family friend. He also admitted that Sh. Vinay Chandra, the other attesting witness is also friend of petitioner. It established that both the attesting witnesses are very good friend and well known family friend of petitioner. He is not aware who drafted the will but he was present there on 09.12.1993. He also does not remember when the Will was got registered. He admitted that the Will Ex. PW-1/A is only in favour of the petitioner, however, he denied the execution of earlier any Will of the deceased/testatrix. The Will was written in the house of Smt. Inder Kaur, deceased/testatrix. He was not aware about the Will whether it was hand written or typed. However, he explained that the Will Ex. PW-1/A was explained to him before the Sub- Registrar.
63. Petitioner appeared as PW-2 and in the detailed cross-examination he deposed that his grand mother, deceased/testatrix was owing other properties as mentioned in the Will Ex. PW-1/A but cannot tell when she had sold the other said properties. He admitted the letters of his grand mother, Smt. Inder Kaur Ex. PW-2/O1. The letters are in Hindi language. He admitted that the attesting witnesses to the Will are known to him being the family friends. He further admitted that a registered Will Ex. PW-2/O2 is the another Will dated 21.10.1993 executed by deceased/testatrix in Hindi language. The testimony of PW-2 established that deceased/testatrix had PC No. 48/09 & Virendra Katyal Vs State 42/45 New No. 16067/16 executed the Will Ex. PW-1/A in which petitioner is the sole beneficiary and another Will prior to it Ex. PW-2/02 dated 21.10.93.
64. It is further established that both the attesting witnesses were not independent and natural but they are thick friends of the petitioner. None of the attesting witnesses was well known to the grand mother of the petitioner late Smt. Inder Kaur, therefore, it is not natural to call witnesses by deceased/testatrix with whom she has no proper interaction and relation. In my considered opinion both the attesting witnesses are known to petitioner and not to deceased/testatrix.
65. It is pertinent to mention here that being the sole beneficiary of the Will Ex. PW-1/A it cannot be ruled out the influence of the petitioner for the execution of the Will Ex. PW-1/A in his favour. At the same time, there is complete exclusion of other legal heirs of the deceased but she has not given any plausible reason and explanation for exclusion of other legal heirs.
66. In my considered opinion the circumstances where both the attesting witnesses was thick friend of petitioner and the will makes the petitioner being the sole beneficiary of the Will coupled with the facts that all other legal heirs have been excluded without plausible reason, it crated suspicious circumstances which are not dispel by the petitioner, Therefore, the Will Ex. PW-1/A suffers from suspicious circumstances.
PC No. 48/09 & Virendra Katyal Vs State 43/45 New No. 16067/16
67. The petitioner in witness box admitted another Will dated 21.10.1993 Ex. PW-2/O2 which was executed by deceased/testatrix two months prior to the Will Ex. PW-1/A relied by the petitioner. The deceased testatrix has not explained what is the reasons or special reason which necessitated her to execute a new Will after just two months.
68. Another vital fact is that in the Will Ex. PW-1/A there is no specific revocation of earlier Will Ex. PW-2/O2 dated 21.10.1993 there is a general mention of revocation of all previous wills. It is not possible when a person is execute a fresh will within the gap of two months he/she cannot remember the previous will. Therefore, it crates suspicious circumstances about the fact that petitioner must have influenced the deceased/testator and he was not in the full knowledge of any earlier will, therefore in the Will Ex. PW-1/A, there is no specific revocation of previous will of the deceased. It is also a grave suspicious circumstances.
69. After going through the contents of the will Ex. PW- 1/A relied by petitioner and previously executed will Ex. PW-2/O2. It is come to the light that deceased in the Will Ex. PW-2/O2 had mentioned of her immovable and movable properties including jewellery and FDRs and others, however, she is silent in the Will Ex. PW-1/A. There is no explanation of not mentioning the movable property in the Will Ex. PW-1/A.
70. Another significant fact is that she has not explained why after two months she is making petitioner being the sole beneficiary, however, in the previous will Ex. PW-2/O2 PC No. 48/09 & Virendra Katyal Vs State 44/45 New No. 16067/16 she has given all the details of her legal heirs including their resident at London and express each and every wish and detail whereas she is silent in Ex. PW-1/A. It established suspicious circumstances which are not dispel by the petitioner. Therefore, as per record and testimony of petitioner's witness PW-2 himself and PW-3, the attesting and objector's witness RW-1 Ms Sushma Juneja, it is established on record that the petitioner failed to establish that the Will Ex. PW-1/A dated 10.12.93 of deceased testatrix late Smt. Inder Kaur is the last, legal and valid. It suffers from grave suspicious circumstances. Therefore, issue no. 2 is decided against the petitioner and in favour of respondents.
71. Relief In view of finding on issue no. 2 the present petition filed by the petitioner is dismissed. No order as to cost. File be consigned to record room.
(Announced in the open (SANJAY KUMAR)
court on 1st February, 2018 ADJ-02 (West)
Tis Hazari Courts
Delhi
PC No. 48/09 & Virendra Katyal Vs State 45/45
New No. 16067/16
PC No. 48/09 & Virendra Katyal Vs State 46/45
New No. 16067/16