Delhi District Court
Sh. Sanjay Gupta vs The State on 24 October, 2019
IN THE COURT OF SH. GAJENDER SINGH NAGAR : LD.
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Petition No. : SC/32853/16
In the matter of:
Sh. Sanjay Gupta,
S/o. Sh. L.R. Gupta,
R/o. 6, Anand Lok,
New Delhi.
....Petitioners.
Versus
1 The State, through Govt. of NCT
2 Sh. L.R. Gupta,
S/o. Late Sh. C.L. Gupta,
R/o. 6, Anand Lok, New Delhi.
3 Sh. Rajiv Gupta,
S/o. Shri L.R. Gupta,
R/o. 4, Vasant Vihar,
Vasant Marg,
New Delhi.
4 Smt. Sumangli Jain,
W/o. Sh. Sanat Jain,
R/o. A135, Niti Bagh,
New Delhi.
.....Respondent.
Date of Institution : 13.07.2005
Date of order when reserved : 24.10.2019
Date of order when announced : 24.10.2019
Petition no. SC/32853/16
JUDGMENT:
1 The present succession petition has been filed by the petitioner namely Sh. Sanjay Gupta in respect of debts and securities left by the deceased Smt. Pramod Gupta, who expired on 05.07.2001, claiming that the deceased Smt. Pramod Gupta was the mother of the present petitioner.
2 After filing of this petition, notice was given to the general public by way of publication in the newspaper 'Rashtriya Sahara"
dated 13.09.2005, but none has appeared from general public to oppose or contest the present petition.
3 Brief facts as stated in the petition are that petitioner's mother Smt. Pramod Gupta W/o. Shri L.R. Gupta had deposited a sum of Rs.19,38,388.94p in her saving bank account bearing no. 320101621 in Americal Express Bank Limited and Rs.29,928/ in saving bank account bearing no. 37618 in Punjab National Bank. It is stated that the his mother had died on 05.07.2001. It is stated that during her life time, she had executed a Will dated 23.03.1980 and Petition no. SC/32853/16 bequeathed all her movable and immovable properties which she possessed at that time and she might own and possess at the time of her death to the petitioner to the exclusion of all her other legal heirs except that out of the properties which she would leave behind, a sum of Rs.5 lacs was to be paid and spent on the marriage of her daughter Sumangli Gupta (who at that time was unmarried). It is stated that at the time of her death, Smt. Pramod Gupta left behind her husband Shri L.R. Gupta, her elder son Shri Rajiv Gupta, the petitioner Sh. Sanjay Gupta and Sumangli Gupta, married daughter. It is stated that apart from the aforesaid Will dated 23.03.1980, deceased had also executed a Codicil dated 19.10.1997 in favour of the petitioner, by which she bequeathed and gave all her rights and share in both movable and immovable properties of L.R. Gupta (HUF) which she owned at the time of her death to the exclusion of all other legal heirs except that a sum of Rs.25 lacs, out of the same would be paid to Ms. Sumangli Gupta. It is stated that by the said codicil, she reiterated and confirmed her Will dated 23.03.1980. It is stated that in the present petition petition, succession certificate is not being sought and applied Petition no. SC/32853/16 for the assets of L.R. Gupta, HUF rather it is sought only in respect of two savings bank account mentioned above.
4 Respondent No. 2, Sh. L.R. Gupta, has filed "No Objection" with affidavit wherein it mentioned that he has no objection if succession certificate may be granted in favour of the petitioner. He also accepted execution of the Will dated 23.03.1980 and also stated that he signed on the Will as a witness in the presence of Sh. Rajiv Gupta (Respondent No. 5), who is his elder son. It is further accepted that both the said witnesses signed the Will as attesting witnesses in the presence of Smt. Pramod Gupta and in the presence of each other.
5 Objections have been filed by Smt. Sumangli Jain @ Sumangli Gupta wherein it is alleged that the other debts and securities of the deceased have not been mentioned in the present petition. Deceased Smt. Pramod Gupta was having a number of other more shares, bank accounts apart from the two mentioned savings bank account. It is contended that the present petition has been filed to bye pass the obligations of filing of probate. It is denied by her that Petition no. SC/32853/16 deceased had executed the Will dated 23.03.1980. It is stated that the Will is forged and fabricated document. It is contended that Sh. L.R. Gupta, the husband of the deceased and Sh. Sanjay Gupta, son of the deceased used to look after the Land Acquisition Claim cases of the deceased, thus, they used to take blank papers signed from her from time to time. It is contended that the Will is not genuine and same is forged and fabricated. It is contended that alleged codicil was also never executed by the deceased. It is contended that a sum of Rs.25 lacs which was to be paid as per codicil to the present objector has not been paid. It is contended that the condition of payment of Rs. 25 lacs has been shown in the Codicil only to give it a colour of genuineness. 6 Sh. Rajiv Gupta also filed objections, wherein it has been alleged that both the will dated 23.03.1980 and codicil dated 19.10.1997 in favour of Sh. Sanjay Gupta are forged and fabricated after the filing of the suit for partition and rendition of accounts filed by Rajiv Gupta before the Hon'ble High Court of Delhi after 10.11.2003. It is stated that till 10.11.2003, the said Will and codicil were never surfaced anywhere in any proceedings. It is stated that the Petition no. SC/32853/16 said Will and Codicil were set up as a counterblast and with a purpose to increase the share of Sanjay Gupta in HUF assets from 25% to 50% and to reduce the share of Rajiv Gupta from 31.25% to 25% and totally exclude the daughter Sumangli Gupta. It is contended that a number of words are handwritten in the otherwise typed Will. 7 Petitioner has also filed reply to the objections of Sumangali Jain wherein it is stated that so far as the payment of Rs.25 lacs required to be paid to the Sumangali Jain as per codicil is concerned, it is submitted that the petitioner being owner of the property No. 14, Anand Lok, New Delhi, a big residential house has already executed a registered gift deed of the entire first floor of the said property in the year 2005 in favour of Smt. Sumangali Jain @ Sumangali Gupta. It is stated that Smt. Sumangali Jain has taken away jewellery of the deceased which were worth more than one crore. It is stated that she has already received one crore approximately, hence she is not entitled to the payment of Rs.25 lacs or any other amount under the Codicil or otherwise. 8 It is to be noted that on 02.03.2006, respondent no. 2 Sh. Petition no. SC/32853/16 Rajiv Gupta filed an application U/s. 151 CPC before this Court wherein it is stated that in a suit bearing No. 196/2003, compromise has been reached between the parties and the answering respondent (Rajiv Gupta) admitted the correctness, genuiness and validity of the Will dated 23.03.1980 and Codicil dated 19.10.1997, duly executed by Smt. Pramod Gupta, during her life time and further undertaken that he would withdraw his objections to the grant of Succession Certificate. It is further stated in the application that in pursuance of the said settlement/compromise, the answering respondent, after due deliberations, has come to the conclusion that the aforesaid Will, to which he is the attesting witness, and the Codicil, executed by Smt. Pramod Gupta, are genuine and were duly and validly executed by her during her life time. However, after filing of the application on 02.03.2006, Sh. Rajiv Gupta never appeared before the Court infact on 10.07.2006 & on 05.08.2006, court notices were issued to the respondent no. 3 Rajiv Gupta to clarify whether he wants to withdraw his objections or not, despite that he never appeared again before the Court.
Petition no. SC/32853/16 9 An important point to be noted here is that after issuance of notices to Sh. Rajiv Gupta, to clarify whether he wants to withdraw his objections or not, he was never ever called again before the Court, either as a party or as a witness.
10 It is also to be noted that vide order dated 15.03.2009, a Local Commissioner was appointed for recording testimony of Sh. L.R. Gupta, however, he could not be examined as he was not well, as recorded in ordersheet dated 25.5.2009.
11 To prove his contentions, petitioner examined PW1 Sh. S.P. Jain, who is attesting witness of the codicil dated 19.10.1997. He filed his affidavit which is exhibited as Ex. PW1/A wherein it is stated that codicil dated 19.10.1997 was executed by Smt. Pramod Gupta in his presence as well in the presence of Sh. S.K. Tewari, the other attesting witness. He identified the signature of Smt. Pramod Gupta at point P on the said codicil and the signature of other attesting witness Sh. S.K. Tewari at point A1. It is stated that Smt. Pramod Gupta was in sound disposing mind at the time of execution of the codicil dated 19.10.1997. the Codicil is exhibited as Ex. PW1/1, in Petition no. SC/32853/16 his cross examination, it is stated that he was a Chartered Accountant handling income tax matter of the husband of Late Pramod Gupta since March, 1991. It is denied that codicil dated 19.10.1997 was never executed by Smt. Pramod Gupta. It is denied that the said codicil was manufactured/prepared after the death of Smt. Pramod Gupta. It is denied that Ex. PW1/1 does not bear the signature of Smt. Pramod Gupta.
12 PW2 Sh. Sanjay Gupta deposed on the same lines as stated in the petition. It is stated by him that the Will dated 23.03.1980 and codicil dated 19.10.1997 have been executed by the deceased Smt. Pramod Gupta. He identified the signature of the deceased on the Will dated 23.03.1980 which is marked as Mark X. It is stated by him that the said Will has been witnessed by his brother, Sh. Rajiv Gupta and his father Sh. L.R. Gupta. It is stated by him that in a matter before Hon'ble Delhi High Court i.e. CS (OS) No. 255 of 2011, both the Local Commission and Doctor, has reported to the Hon'ble High Court that Sh. L.R. Gupta is not in a position to take any decision as he is suffering from severe Dementia, the order dated 07.03.2012 passed by Petition no. SC/32853/16 the Hon'ble High Court of Delhi in this regard is marked as Mark A and the report of the Local Commissioner is marked as mark B alongwith the report given by Neuro Physician. It is stated by him that the partition suit filed by Sh. Rajiv Gupta has been settled, the copy of its judgment is marked as Mark B. It is stated by him that even after that settlement wife of Sh. Rajiv Gupta namely Smt. Alka Gupta has made complaints to Registrar of Companies and the copy of the same is marked as Mark C. It is stated by him that later on the said complaints were dismissed, the copy of the said order is marked as Mark D. It is stated that thereafter Sh. Rajiv Gupta filed case bearing no. CS (OS) No. 1965 of 12 through her daughter, Ms. Sonakshi Gupta.
13 In his cross examination, it is stated by him that his date of birth is 21.11.1962. It is stated that on 23.03.1980, Sh. Rajiv Gupta was a college student and Smt. Sumangali Jain was a school student. It is stated that Mark X was not executed in his presence (It is voluntarily stated that his mother showed to him after its execution). It is stated that Smt. Sumangali Jain was married in the year 1993. It Petition no. SC/32853/16 is stated that her permanent resident was at matrimonial home at the time of death of the deceased, however, due to some disputes, she was residing with him in his residence. It is stated that they have not lodged any complaint qua taking away of the jewellery articles by Smt. Sumangali Jain. It is stated that his mother was a patient of Asthma and she used to visit United States for seeking medical advise of Astham (It is voluntarily stated that his mother was used to be accompanied by him, his father and his sister). It is stated that the litigation of his mother with regard to Bhumidari rights were being looked after by his father. It is denied that he and his father used to get various blank papers signed from the deceased. 14 No other witness has been examined on behalf of the petitioner.
15 Respondent No. 4 Smt. Sumangli Jain examined herself as RW1. She deposed on the same lines as stated in her objections. It is categorically stated that deceased Smt. Pramod Gupta did not execute any Will dated 23.03.1980 and codicil dated 19.10.1997. In her cross examination, it is stated by her that she was born in the year 1964. It Petition no. SC/32853/16 is stated that she must be in the class 89 on 23.03.1980. It is stated by her that her mother never executed any General Power of Attorney or any authority in favour of Sanjay Gupta to pursue her litigation. It is accepted that deceased was of sound disposing mind in the year 1980 as well as in the year 1997. It is stated by her that her parents had given very little jewellery to her in her marriage. It is denied that her mother had given precious jewelery articles to her at the time of her marriage. It is stated by her that she does not remember if she had withdrawn any amount from the bank account of the deceased (It is voluntarily stated that Sanjay Gupta was having documents blank signed by her with him). It is stated by her that Sanjay Gupta used to take her signatures on blank papers, cheque books, documents of companies and on many more documents. It is stated by her that she never objected to her father and brother Sh. Sanjay Gupta as to why they were obtaining signatures of herself and of her mother on blank papers. It is stated by her that her father has admitted the Will and codicil, however, as per her knowledge the same are forged. It is stated by her that she had not filed any case for declaring the Will and Petition no. SC/32853/16 Codicil as null and void. It is accepted by her that she got an FIR bearing no.350/16 PS Hauz Khas, Delhi registered against her husband, copy of the same is exhibited as Ex. RW1/P2. It is also accepted that she had filed a divorce petition against her husband which is exhibited as Ex. RW1/P3. It is accepted that Ex. RW1/P2 is the certified copy of partition suit filed by her before Hon'ble High Court of Delhi. It is stated by her that she could not tell vide order dated 13.04.2015, Sh. Sanjay Gupta has been appointed as Guardian of Sh. L.R. Gupta.
16 No other witness examined on behalf of the respondent. 17 The present succession petition has been filed by the petitioner Sh. Sanjay Gupta in respect of only two savings bank account maintained by the deceased with Standard Chartered Bank and Punjab National Bank. The details of two accounts mentioned in the annexure which is annexed with petition. It is also admitted fact that deceased Smt. Pramod Gupta left behind four legal heirs only i.e. her husband Sh. L.R. Gupta and her children namely Sh. Sanjay Gupta, Sh. Rajiv Gupta and Smt. Sumangali Jain @ Sumangali Petition no. SC/32853/16 Gupta.
18 The present succession petition has been filed by the petitioner Sh. Sanjay Gupta on the basis of will dated 23.03.1980 executed in favour of Sh. Sanjay Gupta reserving a sum of Rs.5 lacs to be given in the marriage of Smt. Sumangali Jain @ Smt. Sumangali Gupta. The deceased also left behind a codicil dated 19.10.1997 wherein the share of deceased in the property of L.R. Gupta, HUF was given to the petitioner, subject to the condition that sum of Rs.25 lacs may be given to the Sumangali Jain @ Sumangali Gupta, however, the execution of the said Will and codicil have been denied by Smt. Sumangali Jain @ Sumangli Gupta, thus, the sole issue to be decided in the present matter is whether the Will dated 23.03.1980 & Codicil dated 19.10.1997 are genuine or not or have been duly proved on record as per law.
19 It is argued on behalf of the petitioner that the Will dated 23.03.1980 has been witnessed by Sh. L.R. Gupta and Sh. Rajiv Gupta. It is a matter of record that Sh. L.R. Gupta, who is father of the petitioner has given his "no objection" in the present matter and also Petition no. SC/32853/16 admitted his signature as well as signature of the deceased on the Will. It is also a matter of record that other respondent Sh. Rajiv Gupta, initially filed objections in the present matter, however, later on after reaching a compromise with the petitioner, moved an application U/s. 151 CPC seeking to withdraw his objection and in his application he also admitted his signature on the Will. It is further contended that the objections of objector Sumangali Jain @ Sumangali Gupta that Will has been forged on blank signed paper taken from the deceased, shows that she is not disputing signatures of the deceased on the Will. It is pointed out that in her cross examination Smt. Sumangali Jain admitted to have lodged an FIR against her husband and also filed a divorce petition against her husband which are exhibited as Ex. RW 1/P3 wherein she admitted that huge money and other gifts including first floor of property at 14, Anand Lok, Delhi has been given to her. It is also mentioned by her in the FIR that her husband has insisted her to file objection against the Will in the present matter, which shows that she has admitted genuineness of the Will in question. It is further contended that one of the attesting witness of Codicil has been Petition no. SC/32853/16 examined, thus Codicil has been duly proved, reference has been made to the Will in the Codicil. It is contended that one of the attesting witness of the Will Sh. L.R. Gupta, was not in a position to depose due to ill health . It is to be noted that Local Commissioner was appointed in the present matter to record his testimony, however, same could not be recorded due to his ill health. It is further pointed out that in an another suit between the parties before the Hon'ble Delhi High Court on the basis of report of Local Commissioner as well as neuro physician, it was observed by Hon'ble Delhi High Court that Sh. L.R. Gupta was not in a position to depose. It is contended, since Rajiv Gupta failed to appear before Court on court notices, hence, he is/was not subject to process of the Court. To support his contention, Ld. Counsel for the petitioner relied on following judgment : 1 Daulat Ram Vs. Sodha (2005) SCC 40.
2 Usha Dewani Vs. Paras Ram T. Dewani (2011) 122 DRJ
460. 3 Mahesh Kumar Vs. Vindo Kumar (2012) 4 SCC 387 4 Santosh Dutta Vs. Surender Krishan Bali & Anr. (2014) Petition no. SC/32853/16 140 DRJ 252.
5 Shakuntala Bai & Ors. Vs. Mr. Mahaveer Prasad (2015) 10 SCC 550.
6 H.V. Nirmala & Anr. Vs. R. Sharmila & Anr. (2018) 2 SCC 303.
It was held in the case titled as "Santosh Dutta Vs. Surender Krishan Bali & Anr. (Supra), that : "22. The requirement in law, on a collective reading of Section 63 (c) ISA and Section 69 IE Act, is only that where neither of the witneeses is available for examination then the evidence of a person who is able to prove the signatures of the attesting witness would be sufficient. Such person should be able to show that the attestation is the handwriting of the attesting witness. Secondly, it must be shown that the signature of the person executing the document is in the handwriting of that person." It was held in the case titled "Seth Beni Chand (since dead) now by L.Rs. Vs. Smt. Kamla Kunwar and others, that : Petition no. SC/32853/16 "8. There is no substance in the grievance that the proof of the will in this case is incomplete for want of an attesting witness's evidence. Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested. It provides that such documents shall not be used as evidence until at least one attesting witness has been called to prove the execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence."
20 Per contra, it is stated on behalf of the objector Smt. Sumangali Jain @ Sumangali Gupta that the Will on the basis of which the present succession petition has been filed, has not been proved as per law, as none of the attesting witness has been examined before the Court. It is contended that though a Local Commissioner was appointed in the present matter to record deposition of Sh. L.R. Gupta, however, due to his ill health, his evidence could not be recorded, however, there is nothing on record to show that on 15.05.2009, L.R. Gupta was not in a position to depose. It is further Petition no. SC/32853/16 contended that though an order dated 07.03.2012 has been passed by Hon'ble Delhi High Court whereby it was held that Sh. L.R. Gupta not in a position to depose, however the same will not help the petitioner, as the present petition was filed in the year 2005 and there is nothing to show on record that from June 2005 till 07.03.2012 and more particularly in the year 2009, Sh. L.R. Gupta was not in a position to depose. It is further contended that other attesting witness of the Will namely Sh. Rajiv Gupta is still alive and in sound disposing state of mind still he was never examined on behalf of the petitioner to prove the Will. It is further contended that the reference of the Will in the Codicil dated 19.10.1997 will not prove that the Will mark X filed before the Court is the same Will which has been mentioned in the codicil, further, the terms of the Will can not be proved by proving the codicil only. To support their contention, Ld. Counsel for objector has relied upon the following judgments : 1 Ram Ratan Misra & Another Vs. Smt. Bittan Kaur AIR 1980 Allahabad 395.
2 National Insurance Co. Limited Vs. Narendra Kumar & Petition no. SC/32853/16 Ors AIR 1980 Allahabad 397.
3 Hare Krishna Panigrahi Vs. Jogneswar Panda AIR 1939 Calcutta 688.
4 New Beerbhum Coal Co. Limited Vs. Chandan Mall Karnani AIR 1939 Calcutta 690.
5 Mt. Shahzadi Begum Vs. Muhammad Qasim & Ors.
decided on 04.01.1928.
6 Vishnu Ramkrishna Wani Vs. Nathu Vithal Wani decided on 10.08.1948.
It was held in the case titled as " Ram Ratan Misra & Another Vs. Smt. Bittan Kaur" (Supra), that : "Section 71 provides an exception to the rule enuciated in S. 68 but to make this provision applicable it is evident that the attesting witness will have to appear in Court as a witness. If the witness sits at home and is not examined because there is an apprehension that he may not support the execution of the mortgage deed, in that event there is a failure to produce the evidence which is required under Petition no. SC/32853/16 Section 68. Consequently, Section 71 cannot come into play".
It was further held in the case titled as " Vishnu Ramkrishna Wani Vs. Nathu Vithal Wani (Supra), that : "Section 71 of the Indian Evidence Act, 1872, provides that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. This is a sort of a safeguard introduced by the Legislature to the mandatory provisions of s. 68 of the Act, where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. Section 71 can only be requisitioned when the attesting witnesses who have been called fail to prove the execution of the will by reason of either their denying their own signatures, or denying the signture of the testator, or having no recollection as to the execution of the document. The section has no application when one attesting witness has failed to prove the execution of the will and other attesting witnesses are available who could prove the execution if Petition no. SC/32853/16 they were called.
Section 68 of the Indian Evidence Act is not permissive or enabling. It lays down the necessary requirements which the Court has to observe in order that a document can be held to be proved. The principle underlying the section is that execution of the will must be proved by at least one attesting witness, that it is only an attesting witness who is entitled to prove the execution of the will. It is a concession that the Legislature has made. If that concession does not result in complying with the mandatory requirements of s.68, the only proper method is to call the other attesting witness, so that both the attesting witnesses are before the Court, and the due execution of the will is proved by the two attesting witnesses which are necessary before a will can become a valid document". 21 The undersigned has heard arguments advanced by the Ld. Counsel for the parties and perused the records. 22 The relevant provisions of law qua execution of a Will as well as qua proving the same on record are as follows : Petition no. SC/32853/16
(i) As per Section 63 (c) of Indian Succession Act, 1925, a 'Will' is required to be attested by two or more witnesses, each of whom interalia has seen the Testator signing or affixing his thumb mark to the 'Will' and that each of the witnesses signed on the 'Will' in the presence of the Testator, or has received from the Testator a personal acknowledgment of his signatures and each of the witness shall sign the 'Will' in presence of the Testator, however, it is not necessary that more than one witness be present at the same time.
(ii) As per Section 68 of Indian Evidence Act, 1972, if a document is required by law to be attested (for example a Will), it should not be used in evidence unless one of the attesting witness has been examined to prove the same i.e. the Will. Section 68 of Indian Evidence Act is reproduced verbatim herein below : "Section 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 provisions of the Indian Registration Act, 1908 (16 Petition no. SC/32853/16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
(iii) From perusal of Section 68 of Indian Evidence Act, it is amply clear that even admission of a Will by the other party is of no help as a Will cannot be used in evidence, unless one of the attesting witness has been examined for the purpose of proving its execution.
(iv) From perusal of Section 68 of Indian Evidence Act, it is apparent that even if the Will is registered, still it is necessary to call atleast one of the attesting witness to prove the same.
(v) It is hereby made clear that Section 70 of Indian Evidence Act contemplates a situation where the executor himself accept the execution of a document required to be attested.
However, in the present matter, executor of the Will namely Smt. Pramod Gupta is no more, hence there is no question of application of Section 70 of Indian Evidence Act in the present matter.
(vi) Section 71 of Indian Evidence Act, which provides 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. 23 In a landmark judgment on the matter in issue titled as Jagdish Chand Sharma Vs. Narain Singh Saini, decided on Petition no. SC/32853/16 01.05.2015 Hon'ble Supreme Court has held as follows : "40. xxx If an attesting witness is alive and is capable of giving evidence and is subject to the process of the Court, he/she has to be necessarily examined before such document can be used in evidence. It was expounded that on a combined reading of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, it was apparent that mere proof of signature of the testator on the Will was not sufficient and that attestation thereof was also to be proved as required by Section 63 (c) of the Indian Succession Act. It was, however, emphasised that though Section 68 of the Indian Evidence Act permits proof of a document compulsorily required to be attested by one attesting witness, he/she should be in a position to prove the execution thereof and if it is a Will, in terms of Section 63 (c) of the Indian Succession Act, viz, attestation by two attesting witnesses in the manner as contemplated therein. It was exposited that if the attesting witness examined besides his attestation does not prove the requirement of the attestation of the Will by the other witness, his testimony would fall short of attestation of the Will by at least two witnesses for the simple reason that the execution of the Will does not merely mean signing of it by the testator but connotes fulfilling the proof of all formalities required Petition no. SC/32853/16 under Section 63 of the Act. It was held that where the attesting witness examined to prove the Will under Section 68 of the Indian Evidence Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects.
41. Qua Section 71 of the Indian Evidence Act, it was held to be in the form of a safeguard to the mandatory provision of Section 68 to cater to a situation where it is not possible to prove the execution of the Will by calling the attesting witnesses though alive i.e. if the witnesses either deny or do not recollect the execution of the Will. Only in these contingencies by the aid of Section 71 of the Indian Evidence Act, other evidence can be furnished. It was further clarified that Section 71 of the Indian Evidence Act would have no application to a case where one attesting witness who alone had been summoned fails to prove the execution of the Will and the other attesting witness though available to prove the execution of the same, for reasons best known, is not summoned before the Court.
42. This Court underlined that Section 71 of the Indian Evidence Act was meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility and cannot be let Petition no. SC/32853/16 down without any other opportunity of proving the due execution of the document by other evidence. That, however, Section 71 of the Indian Evidence Act cannot be invoked so as to absolve the party of his obligation under Section 68 of the Indian Evidence Act read with Section 63 of the Indian Succession Act and to liberally allow him, at his will or choice, to make available or not, necessary witness otherwise available and amenable to jurisdiction of the Court, was highlighted in emphatic terms. That no premium upon such omission or lapse so as to enable him to give a gobye to the mandates of law relating to proof of execution of a Will, as contemplated by these statutory provisions, was precisely underlined. In the facts and circumstances of that case, as the second attesting witness though available had not been summoned, the benefit of Section 71 of the Indian Evidence Act was not extended. The Will was thus held to be not proved for the failure of the attesting witness so produced, to testify as per the ordainment of Section 63 (c) of the Indian Succession Act." 24 On the basis of abovestated facts, legal provisions and case laws, it can be safely held that:
(i) In the present matter, the Will in question dated 23.03.1980 has not been probated.
(ii) The admission of the existence of the will or its Petition no. SC/32853/16 genuineness by the objector/respondent Sumangali Jain @Sumangali Gupta in her previous statements in the form of an FIR or divorce petition will not bye pass the stringent provisions of Section 68 and 71 of the Indian Evidence Act, to prove the execution of the Will. It is further to be noted that without complying with the requirements of the section 68 of the Indian Evidence Act, the will cannot be used as a piece of evidence at all. Thus, even an admission on the part of the contesting party will not make the Will an admissible piece of evidence.
(iii) Admittedly, in the present matter the codicil dated 19.10.1997 of the deceased has been proved by one of its attesting witness i.e. PW1, further there is mention of will dated 23.03.1980 in that codicil. However, proving this codicil will not amount to proof of the Will as required under section 68 of Indian Evidence Act. Further, the terms of the Will can not be proved by mere mention of the Will in the codicil.
(iv) Though, both the attesting witnesses of the Will in question filed their affidavits on record alongwith their no objections as well as alongwith application U/s. 151 CPC. However, none of them could be examined before the Court despite the fact that execution of the Will has been challenged by the respondent Sumangali Gupta. Thus, their affidavits filed on record can not be held sufficient proof of execution of the Will without they being subjected to cross examination.
Petition no. SC/32853/16
(v) The Local commissioner appointed on the
application of the petitioner in the year 2009 to record deposition of Sh. LR Gupta, could not record his deposition as Sh. L.R. Gupta was not well, however, there is nothing on record to suggest that at that time i.e. in the year 2009, Sh. L.R. Gupta was not in sound deposing state of mind. Further, moving an application for appointment of Local Commissioner on the part of the petitioner also gave an impression that Sh. L.R. Gupta was in sound deposing state of mind at that time. Though, it is a fact that in the year 2012 on the basis of report of neuro physician and Local Commissioner, it was observed by Hon'ble High Court of Delhi that Sh. L.R. Gupta was not in sound deposing state of mind at that time i.e. in the year 2012. thus, there is no positive evidence on record to suggest that Sh. L.R. Gupta was not in sound deposing state of mind in the year 2009.
(vi) It is not disputed that after 2012, Sh. L.R. Gupta was not in sound deposing state of mind. In such circumstances, the other attesting witness of the Will namely Sh. Rajiv Gupta should have been called as a witness before the Court. However, in the present matter, the petitioner not even tried to call Sh. Rajiv Gupta as a witness. The contention of the petitioner that since Sh, Rajiv Gupta failed to appear on two court notices, hence, he was not subject to process of the Court that is why he was not called as a witness is not tenable, as the said court notices issued vide order dated 10.07.2006 and 05.08.2006 were issued to Sh. Rajiv Gupta seeking clarification Petition no. SC/32853/16 from him qua filing of application U/s. 151 CPC whereby he withdrew his objections, said notices were not sent to him to be called before the Court as witness. It was the responsibilty of the petitioner to call Sh. Rajiv Gupta as a witness during petitioner's evidence, however, petitioner never bothered or deliberately never tried to call him. In such circumstances, when the second attesting witness though available had not been summoned, the benefit of section 71 of Indian Evidence Act will not be extended to the petitioner.
(vii) It is contended on behalf of the petitioner that even after reaching a settlement with the petitioner in the partition suit Sh. Rajiv Gupta, through his wife got registered a complaint in the Office of Registrar of Companies against the present petitioner. Further, daughter of Sh. Rajiv Gupta has also filed a civil suit against the petitioner, thus there was an apprehension that Sh. Rajiv Gupta would not have deposed truthfully before the Court. Be that as it may, the aid of section 71 of the Indian Evidence Act, can be availed only if the attesting witnesses either deny or do not recollect the execution of the Will. Section 71 of Indian Evidence Act have no application to a case where one attesting witness who alone had been summoned fails to prove the execution of the will and the other attesting witness though available to prove the execution of the same, for the reasons best known, is not summoned before the Court.
(viii) Thus, it was the responsibility of the respondent to call Mr. Rajiv Gupta as a witness in the present matter and in case Petition no. SC/32853/16 Mr. Rajiv Gupta would have denied or failed to recollect the execution of the Will only then aid of section 71 of Indian Evidence Act could have been taken. Section 71 of the Indian Evidence Act was meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility and cannot be let down without any other opportunity of proving the due execution of the document by other evidence. That, however, Section 71 of the Indian Evidence Act cannot be invoked so as to absolve the party of his obligation under Section 68 of the Indian Evidence Act read with Section 63 of the Indian Succession Act and to liberally allow him, at his will or choice, to make available or not, necessary witness otherwise available and amenable to jurisdiction of the Court. 25 In view of the abovestated facts, it can be safely held that petitioner has failed to prove the Will dated 23.03.1980 before the Court as per requirements of section 68 & 71 of Indian Evidence Act. 26 Since, alleged Will dated 23.03.1980 has not been proved as per law, thus the same can not be relied upon to grant Succession Certificate in the present matter. Thus, the debts and securities of the deceased which are not included in the codicil dated 19.10.1997 will be divided among her legal heirs as per the rules of intestate succession provided under the Hindu Succession Act. As per which, all her legal heirs i.e. husband Sh.L.R. Gupta and three children are entitled to equal shares in the debts and securities of the deceased. Petition no. SC/32853/16 27 Therefore, the court is of the considered opinion that there is primafacie no impediment for grant of Succession Certificate in favour of the Petitioner namely Sh. Sanjay Gupta as also in favour of respondents No. 2 to 4 namely Shri L.R. Gupta, Sh. Rajiv Gupta and Smt. Sumangli Jain to the extent of 1/4th share each in the savings bank account maintained with American Express Bank Limited and Punjab National Bank as mentioned in the details of bank deposits by the deceased Smt. Pramod Gupta having total amount of Rs.19,68,316.94p. Succession Certificate granted accordingly. Succession certificate be drawn on deposit of requisite proportionate court fee of Rs.49,208/ & on furnishing an Indemnity Bond with one surety within 15 days. Digitally signed by GAJENDER GAJENDER SINGH NAGAR 28 File be consigned to Record Room. SINGH Date:
NAGAR 2019.10.24
22:56:35
+0530
Announced in the open court (GAJENDER SINGH NAGAR )
on 24.10.2019 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi.
THIS JUDGMENT CONTAINS 32 PAGES
Petition no. SC/32853/16
SC/32853/16
24.10.2019
Present : None.
Vide separate judgment of even date, it is held that there is primafacie no impediment for grant of Succession Certificate in favour of the Petitioner namely Sh. Sanjay Gupta as also in favour of respondents No. 2 to 4 namely Shri L.R. Gupta, Sh. Rajiv Gupta and Smt. Sumangli Jain to the extent of 1/4th share each in the savings bank account maintained with American Express Bank Limited and Punjab National Bank as mentioned in the details of bank deposits by the deceased Smt. Pramod Gupta having total amount of Rs.19,68,316.94p. Succession Certificate granted accordingly. Succession certificate be drawn on deposit of requisite proportionate court fee of Rs.49,208/ & on furnishing an Indemnity Bond with one surety within 15 days.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJ/ARC (Central) Delhi/24.10.2019 Petition no. SC/32853/16