Delhi District Court
Sh. Jagdish Chander Bathla vs State on 25 August, 2007
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IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
PC No. 33/2006
Date of institution : 8.8.1997
Date on which the judgment was reserved for : 10.08.2007
Sh. Jagdish Chander Bathla,
S/o late Sh. Sona Ram,
R/o 6/23, Subhash Nagar,
New Delhi.
............ Petitioner.
Versus
State. ............ Respondent.
JUDGMENT
1. This is a petition filed by petitioner Sh. Jagdish Chander Bathla for the grant of probate of Will dated 28.02.1992, executed by late Sh. Sona Ram. Briefly stated, the facts as stated in petition are that Sh. Sona Ram expired on 26.04.1994. Petitioner is the son of the deceased. Besides the petitioner, the deceased has left behind one son named Sh. Sant Ram, four daughters and the legal heirs of pre- deceased son Sh Gopal Dass. During his lifetime, deceased executed a Will dated 28.02.1992, which was registered with the office of Sub Registrar, Delhi. The estate left behind by the deceased is a residential : 2: house bearing No. 6/23, Subhash Nagar, New Delhi. Petitioner is the beneficiary as well as executor under the Will.
2. Citation was published in National Herald but no one appeared from general public to file any objection. Notices of the petition were sent to the other relatives named in Annexure A. Relation No. 2 Smt. Krishna Devi filed her no objection but other legal heirs filed their written statements/objections and counter claim. In their written statement, they have stated that the present petition is not maintainable as a Civil Suit bearing No. 558/95 regarding property bearing No. 6/23, Subhash Nagar, New Delhi is already pending in the court of Sh. Ramesh Kumar, Civil Judge. They have challenged the Will dated 28.02.1992 stating that the same was got executed and registered fraudulently under the undue influence and pressure as the testator was not in a fit condition at the time of execution and registration of the said Will. They have also stated that the deceased executed a subsequent Will dated 17.11.1993 in favour of replying objectors and also in favour of Sh. Sri Kant son of Sh Sant Ram, relation No. 1 and therefore, no probate can be granted of the Will dated 28.02.1992.
3. Petitioner filed replication stating that Will dated 17.11.1993 is a forged and fabricated document as it was not executed by the deceased nor it bears his thumb impression. It is stated that Sh. Sona Ram had no intention to execute any such Will dated 17.11.1993. He : 3: had lodged the complaints to statutory authorities and to the police as well. There was also exchange of notices through counsels. The letters written by the close relatives of the deceased testified that the blank papers bearing the signatures of the deceased were used to forge the Will in question. It has been further stated that Sh. Sona Ram suffered paralytic attack of his right side in the last week of April, 1991. The petitioner got him medically examined and treated. The right hand of the deceased was affected due to paralytic attack due to which, he was not able to do anything with his right hand and did not execute any document under his signatures till his death. It has been further stated that relation No. 1 Sh. Sant Ram in order to usurp the property, started creating false and frivolous evidence in his favour by misrepresenting the authorities by sending letters in October/November, 1993, purported to have been executed by the deceased Sh. Sona Ram, whereas, the fact is that deceased had never executed any such letter or document. It has been further stated that the deceased was totally bed ridden and was suffering from bed sores super imposed secondary infection. He was physically handicapped and was unable to sit and continued to lie on the cot. He was unable even to go to toilet or bathroom to ease himself. In such a condition, deceased never moved out of the house and therefore, question of his executing the Will dated 17.11.1993, does not arise.
4. Relation No. 1 Sh. Sant Ram expired during the pendency of : 4: the case. His wife and the other legal heirs were substituted. On completion of pleadings, following issues were framed by the then learned District Judge vide orders dated 22.03.1999.
i) Whether the Will dated 28.02.1992, propounded by the petitioner is the last Will and testament of deceased Sh.
Sona Ram and it has been executed by him in sound
disposing mind and that it is a valid Will? OPP.
ii) Relief.
5. During the pendency of the case, all the objectors except relation No. 5 Smt. Neelam Gaba withdrew their objections and gave no objection in favour of the petitioner. Now, relation No. 5 only is contesting the petition.
6. In order to prove his case, petitioner examined three witnesses including himself. PW-1 is Dr. Ashok Kapoor. He is one of the attesting witnesses of the Will dated 28.02.1992 Exbt. PW-1/1.
He has deposed that he had signed as attesting witness on two Wills. The first Will was executed at his clinic in 1991 while the second was executed in the office of Sub Registrar, Janak Puri in the year 1992. He deposed that Sh. Sona Ram was mentally alert at the time of execution of both the Wills. He has further stated that deceased had : 5: suffered a paralytic attack, as a result of which, he was suffering from Post Paralytic Residual Muscular weakness on the right side of the body on upper and lower limb and due to which, he was not in a position to write.
PW-2 is Sh. V.P. Jaggi. He is the second attesting witness of the Will Exbt. PW-1/1. He has also deposed that he had attested the Will of the deceased Exbt. PW-1/1. He has stated that Sh. Sona Ram was having sound disposing mind at the time of execution of the Will.
PW-3 is petitioner himself. In his affidavit Exbt. PA, tendered in evidence, he has stated about the averments which he has made in his petition.
7. Objector Smt. Neelam Gaba in her evidence, tendered her affidavit only. In her affidavit, she has stated that her father Sh. Sona Ram had executed the Will dated 17.11.1992, thereby depriving of the petitioner any right and interest in the property bearing No.6/23, Subhash Nagar, New Delhi. She has stated that the Will dated 28.02.1992 does not carry any legal sanctity in view of the Will dated 17.11.1993, which is the last and final Will. She has also stated that her father was fit, healthy and in full senses at the time of execution of the Will dated 17.11.1993.
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8. Arguments have been heard from the learned counsels. My issue-wise findings are as under:-
9. ISSUE NO. 1
The onus to prove 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 signature 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. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. In addition, propounder also has to prove that the Will in question conforms to the requirements of Section 63 of the Indian Succession Act. The burden of proving the execution and attestation of the Will is evidently on the propounder.
10. PW-1 Dr. Ashok Kapoor and PW-2 Sh. V.P. Jaggi are the two attesting witnesses of the Will dated 28.02.1992 Exbt. PW-1/1.
Exbt. PW-1/1 does not bear the signatures of Sh. Sona Ram as testator. It only bears his thumb impression. PW-1 Dr. Ashok Kapoor has stated that Sh. Sona Ram had suffered a paralytic attach due to which, he was not in a position to write. However, he has stated that the deceased was mentally alert at the time of execution of the Will. : 7: PW-2 Sh. V.P. Jaggi has also stated that right hand of Sh. Sona Ram was stiff and that he used to affix the thumb impression with his left hand. Both these witnesses have been cross examined at length by the advocate of objectors but there is no cross examination on the point that deceased Sh. Sona Ram had suffered paralytic attack and due to this reason, he was unable to put his signatures. The objector does not dispute this fact even in her affidavit. She does not dispute the fact that her father was unable to put signatures due to paralysis and that Exbt. PW-1/1 bears the thumb impression of her father. In the entire cross examination of PW-1 and PW-2, there is not even a suggestion that the Will Exbt. PW-1/1 does not bear the thumb impression of Sh. Sona Ram. Both the attesting witnesses identified the thumb mark of the testator and their own signatures on the Will Exbt. PW-1/1. Regarding their acquaintance with deceased, PW-1 Dr. Ashok Kapoor has stated that Sh. Sona Ram was his neighbourer and was under his treatment since 1981 regularly. He has stated in cross examination that he had issued regular prescriptions on small slips for minor ailments to Sh. Sona Ram. The prescriptions have been proved as PW-1/2 to PW-1/4. He has deposed that distance between his clinic and the residence of Sh. Sona Ram is 100 meters and similarly, the distance between his residence and the residence of Sh. Sona Ram is about 100 meters. In cross examination, he has admitted that he had been treating Sh. Sona Ram till his death. He has stated that he used to visit him : 8: every month till his death. The evidence of this witness proves that the deceased was quite well known to him and there was proximity between him and the deceased. Similarly, PW-2 has stated that deceased Sh. Sona Ram was his neighbourer. He was living at a distance of about 100 yards from his house. Thus both the witnesses who attested the Will, were the persons, known to the deceased.
11. The argument of learned counsel of objector is that deceased used to sell toffees and biscuits etc. near the main gate of a school in Subhash Nagar while PW-1 is a doctor and PW-2 is a Professor in Delhi College of Engineering. The deceased was not having good status and therefore, it is improbable that PW-1 and PW-2 who are the men of status, would attest the Will of Sh. Sona Ram, who used to sell only toffees and biscuits near the school gate. I am unable to accept this argument as there is no presumption that PW-1 and PW-2 would not attest the Will of Sh. Sona Ram because he was not of their status particularly when it is proved that both the attesting witnesses were well known to him.
12. The next argument of learned counsel of objector is that deceased was not mentally sound and was therefore not in a position to execute the Will. It is argued that PW-1 is not a Neurologist and therefore, he cannot tell that the brain of Sh. Sona Ram was not affected due to paralysis. PW-1 is a qualified doctor being MBBS. In : 9: his cross examination, PW-1 has admitted that he is not specialized in Neurology or concerning the mental diseases or Cardiology but he is practicing in these fields. Therefore, it cannot be said hat he was unable to determine whether deceased was having any Neurological problem or was having sound mind. The mental state of mind of a person can be judged even by a person who is not a doctor by mere observation. In any case, it is not the defence of the objector that her father was suffering from any Neurological problem or was not having sound mind. Both the attesting witnesses have stated that Sh. Sona Ram was having sound disposing mind at the time of execution of the Will and was recognizing all the persons present there at that time. In view of the testimonies of both these witnesses, I refuse to buy the argument that deceased was not having sound disposing mind at the time of execution of the Will.
13. It has been argued that PW-2 Sh. V.P. Jaggi could not identify the photograph of Sh. Sona Ram, which was shown to him and therefore it proves that PW-2 is a planted witness, who did not know Sh. Sona Ram. PW-2 was shown various photographs. He identified Sh. Sona Ram in photograph Mark D but could not identify him in the other photographs. The reason given by him is that he had never seen Sh. Sona Ram with a turban on his head. The witness has thus given cogent explanation for not identifying the testator in the photographs.
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14. In her written statement, objector has not disputed the existence and execution of the Will. Her main objection is that Will dated 28.02.1992 was got executed and registered fraudulently under undue influence and pressure. In this case, no proper particulars of fraud, undue influence and pressure have been furnished. In case of fraud, undue influence and coercion, the party pleading it must set forth full particulars and the case can only be decided on the particulars as laid. General allegations are insufficient even to amount to an averment of fraud of which anybody ought to take notice, however strong the language in which they are couched. In the matter of proof of fraud, suspicion cannot take place of proof and fraud should be proved by direct cogent evidence of proof. Nothing has been elicited in the cross examination of the petitioner or the attesting witnesses to show that execution of the Will Exbt. PW-1/1 was surrounded by suspicious circumstances.
15. The main objection taken in the written statement/objection is that in view of the subsequent Will dated 17.11.1993, the earlier Will dated 28.02.1992 becomes null and void and without any legal sanctity. No doubt, it is true that probate of Will dated 28.02.1992 can be granted only after it is proved that the same is the last and final testament of the deceased. The onus to prove the Will dated 17.11.1993 was on objector Neelam Gaba. She has not proved the : 11 : said Will. No attesting witness has been produced to prove the Will dated 17.11.1993. Admittedly, she and other legal heirs had filed a petition for the grant of probate of Will dated 17.11.1993 which was pending before this court. Documents Exbt. PW-3/21 to Exbt. PW- 3/22-A prove that she has withdrawn the said petition. She herself admits in her cross examination that the probate petition relating to Will dated 17.11.1993 has since been withdrawn. Thus, I hold that object Smt. Neelam Gaba has failed to prove that the Will dated 28.02.1992 stands superseded/revoked by subsequent Will dated 17.11.1993.
16. The Will dated 28.02.1992 is a registered Will. It is obvious that though a Will is not required to be compulsorily registered and there is no legal impediment to an unregistered Will being accepted, provided its execution and attestation, as required by law, are proved; yet when, in a case like the present one, a person makes a registered Will, it would normally be expected of him to get the subsequent Will registered if he chooses to supersede the previous one. The non-registration, in such a situation does create suspicion, which the propounder has to explain. The objector has not explained any reason why subsequent Will if any dated 17.1.1993 was not got registered by the testator.
17. In view of my aforesaid discussion, I am of the opinion that : 12 : petitioner has been able to prove that Will dated 28.02.1992 is the last and final testament of late Sh. Sona Ram, which was executed by him in sound disposing mind. Issue No. 1 is accordingly decided in favour of the petitioner.
18. ISSUE NO. 2
Section 222 of the Indian Succession Act provides that probate shall be issued to the person who is named as executor in the Will. Petitioner Sh. Jagdish Chander Bathla has been named as executor of the Will Exbt. PW-1/1. He is therefore entitled for the grant of probate. Petition is accordingly allowed. Probate be issued in favour of the petitioner with copy of the Will dated 28.02.1992 Exbt. PW-1/1 annexed thereto with respect to bequeathed property i.e. 6/23, Subhash Nagar, New Delhi as detailed in Annexure B subject to receipt of valuation report, filing of requisite court fees and administration bond with surety. File be consigned to Record Room.
( RAVINDER DUDEJA ) ADDL. DISTRICT JUDGE: DELHI.
ANNOUNCED IN THE OPEN COURT ON 25.08.2007.