Delhi District Court
Ravinder Kumar Tyagi vs State on 15 May, 2014
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC-6/12
In the Matter of:
Ravinder Kumar Tyagi
s/o late Sh. Ganga Sharan Tyagi
r/o 4775, Ahata Kidara,
Pahari Dhiraj, Delhi-110006.
.................. Petitioner
VERSUS
1. State
Through Collector
District, Baghpat, U.P..
2. Ashok Tyagi
s/o Late Sh. Likhi Ram Tyagi,
r/o B-34, Gali no. 6, Arjun Mohalla,
Mauj Pur, Delhi-110053
3. Chaman Tyagi
s/o late sh. Likhi Ram Tyagi
r/o B-38, Gali no.6, Arjun Mohalla,
Mauj Pur, Delhi-110053
4. Pawan Tyagi
s/o late Sh. Likhi Ram Tyagi
5. Pramod Tyagi,
s/o late Sh. Likhi Ram Tyagi
6. Smt. Lehri
w/o late Sh. Likki Ram Tyagi,
4-6: r/o B-171, Arvind Nagar,
Ghonda, Delhi-110053
7. Vinod Tyagi
s/o late Sh. Likhi Ram Tyagi
PC-6/12 Page:-1/26
r/o C-2/196, Yamuna Vihar,
Delhi-110053.
8. Rajender Tyagi
s/o late Sh. Brahmanand
r/o C-1/76, Yamuna Vihar,
Delhi-110053.
9. Subhash Tyagi
s/o late Sh. Brahmanand
r/o 1/50, Second Floor,
Gali Pradhan Market,
Nirankari Colony, Delhi.
10. Mahesh Tyagi
s/o late Sh. Brahmanand
r/o D-2768, Gali no.2,
L- Block, Trimurti,
Shastri Nagar, Delhi
11. Nanak Chand
s/o Late Sh. Jagmander @ Raghunandan
r/o village Firozpur, Tehsil Khekhra,
District Baghpat, U.P.
12. Rakesh
s/o late Sh. Jagmander @ Raghunandan
r/o 25/4, Gali no. 2, Nathu Pura,
Burari, Delhi.
Also at:-
Village Firozpur, Tehsil Khekhra,
District Baghpat, UP.
13. Raj Kumar
s/o late Sh. Jagmander @ Raghunandan
At U1, Shop no. 1, Upadhyay Block,
Shakar Pur, Delhi-110092
14. Anil Kumar
s/o late Sh. Satishwar
15. Sunil Kumar
s/o late Sh. Satishwar
16. Kapil Kumar
s/o late Sh. Satishwar
17. Smt. Kamla
PC-6/12 Page:-2/26
w/o Late Sh. Satishwar
All are r/o Village Firozpur,
Tehsil Khekhara, District Baghpat, UP.
18. Ashey
s/o late Sh. Kundan Singh
r/o Village Firozpur,
Tehsil Khekhara, District Baghpat, U.P.
19. Sanjay
son of Late Sh. Daya Ram
20. Rajiv
son of Late Sh. Daya Ram
21. Pradeep
son of Late Sh. Daya Ram
22. Smt. Sheela
w/o late Sh. Daya Ram
All are r/o Vilalge Firozpur,
Tehsil Khekhara, District Baghpat UP
23. Manoj
s/o Sh. Daya Nand
r/o Village Firozpur
Tehsil Khekhara, District Baghpat UP.
24. Amit
s/o Sh. Daya Nand
r/o B-109, 18/2, Phase-4,
Shiv Vihar, Karawal Nagar,
Delhi-110094
................ Respondents
Date of Institution: 22.2.12
Date of Assignment to this court: 18.7.13
Date of Arguments: 15.5.14
Date of Decision: 15.5.14
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition u/s 276/277 of Indian Succession Act for grant of probate/letter of PC-6/12 Page:-3/26 administration in respect of the estate of deceased Sh. Hari Ram Tyagi in view of Will dated 22.8.1980. The brief facts of the case as narrated in the petition are that late Sh. Hari Ram Tyagi son of late Sh. Kundan Singh r/o 6954, Ahata Kidara Pahari Dhiraj Delhi expired on 2.9.80 leaving behind his Will dated 22.8.80 which was in care and custody of Sh. Rajiv Krishan Bindal, Advocate and vide said Will late Sh. Hari Ram Tyagi bequeathed his movable and immovable property in favour of Smt. Vimla Tyagi @ Bimla Tyagi, mother of petitioner. It was stated that the Will in question was executed by deceased in a resembling good physical state and in perfect mental state of fitness on 22.8.1980 and the same was drafted by Sh. Rajiv Krishan Bindal, Advocate and the same was also kept in his custody upon the request of late Sh. Hari Ram Tyagi. It was stated that there was no knowledge of the execution of the Will in question to the mother and father of the petitioner and upon sudden introduction of the petitioner with Sh. R.K. Bindal, Advocate on 21.12.00 in regard of the relation with late Sh. Hari Ram Tyagi and then Sh. Rajiv Krishan Bindal Advocate disclosed about the execution of Will in favour of mother of the petitioner by late sh. Hari Ram Tyagi and hand over the same to the petitioner on 22.12.10. As stated after handing over of the Will in question PC-6/12 Page:-4/26 by Sh. Rajiv Krishan Bindal, Advocate tot he petitioner, a family meeting was held on 31.12.10 and 13 people/respondents had given their no objection in regard of the Will and the same was annexed with the petition. It was stated that Sh. Rajender Tyagi, son of Sh. Brahamnand Tyagi, one of the respondent who is working in Delhi Administration as Gazetted officer has confirmed the execution of no objection dated 31.12.10 as well as another letter dated 27.5.11 issued by him in which he had admitted the execution of the no objection as well a issuance of the letter dated 27.5.11. Sh. Rajender Tyagi had deposed before the court of Upper Aayukt Meerut Mandal Meerut Sh. Pramanshu Sh. Rajender Tyagi had deposed that he had signed no objection dated 31.12.10 as well as letter dated 27.5.11. it was stated that the Will in question was executed in the presence of four witnesses whose names appears in the bottom of the Will and the petitioner has not filed any previous petition for grant of probate with regard to the property of the deceased. As stated the testator has made this Will without any coercion, undue influence or pressure and in sound disposing state of mind. It was stated that the Will in question was executed in favour of the mother of the petitioner who expired on 29.7.95 and thereafter father of the petitioner also expired on 5.8.10. It was stated PC-6/12 Page:-5/26 that the petitioner has also filed application in the relevant sections of UP Land Revenue Act and UP Zamindari Abolition and Land Reforms Act, 1950 which is captioned before the Tehsildar and also filed suit for declaration and partition which is captioned before Assistant collector Khekhra Tehsil Baghpat, U.P.. It was accordingly prayed that probate/letter of administration be granted to the petitioner in respect of last Will of the deceased dated 22.8.1980.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report, however valuation report was not filed. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " Punjab Kesari" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper "Punjab Kesari" on 5.3.12.
4. Respondents no. 3,7,9,12 despite service did not appear and were proceeded ex-pare vide order dated 2.6.12. Respondents no. 10,19,,23 and 24 were served by way of publication but they are did not appear nor filed any objections.
PC-6/12 Page:-6/26 5. Objections to the present petition were filed on behalf
objectors /respondents no. 2,4,5,6,11,13,14,15,16,17,18,20,21 & 22 jointly wherein it was stated that late Sh. Hari Ram during his life time lived with his brothers/respondents and he used to take food with the respondents and the respondents used to take care of him and after his death all the respondents and the father of the petitioner being only legal heir become the co-sharer in the land/property in question. It was stated that being the legal heir of late Sh. Hari Ram the respondents and the father of the petitioner mutated their names in the records of the revenue record concerned against their respective shares in the land/property belonging to late Sh. Hari Ram. It was stated that father and mother of petitioner during their life time always admitted their respective 1/10th share in the disputed land and have not filed any claim/objection in this context which shows that there was no such Will in existence. It was stated that petitioner with malafide intentions and ulterior motives in order to grab the property/land of late Sh. Hari Ram has deliberately prepared, manipulated and created the forged Will in question. It was stated that the Will in question is forged and fabricated since the same is executed in respect of a rented shop no.6954 at Ahata Kidara, Bara Hindu Rao, Delhi in which the executant was running PC-6/12 Page:-7/26 a tea stall. It was stated that the executant Sh. Hari Ram has not mentioned anything in respect of the agricultrual land and the Baithak/property situated in abadi of village of Forozpur, District Khekhra Baghpat except the said shop which means that Sh. Hari Ram has executed the Will as alleged only for the said shop and goods lying therein and as such the petitioner is not entitled to get any relief from this court. It was stated that the Will in question is surrounded with suspicious circumstances as the said Will has come to light after the lapse of 32 longs years out of the blue and during this 32 years the said Sh. Rajiv Krishan Bindal, Advocate never tried to come in contact with the beneficiary regarding the alleged Will and suddenly in 2010 the said Adovcate had disclosed about the execution of the Will in question. It was also stated that at the relevant time of execution of the alleged Will late sh. Hari Ram was not in sound and disposing state of mind and he did not know the contents of the document/Will as alleged which he never executed. It was stated that the Will in question was not executed or signed by Sh. Hari Ram. It was denied that after handing over the Will in question by Sh. Rajiv Krishan Bindal, Advocate to the petitioner a family meeting was held on 31.12.10 and thirteen respondents had given their no objection to the Will.
PC-6/12 Page:-8/26 It was submitted that respondents had not given any no objection in respect of the Will in question in any manner. Rest of the contents of the petition were denied and it was prayed that the probate petition filed by the petitioner by dismissed.
6. Respondent no. 8 also filed his objections separate. Similar objections as taken by other respondents mentioned above were taken by him. It was stated that petitioner had concealed the contents of the Will dated 22.8.1980 and had taken the signature of the respondent no. 8 on no objection without showing the copy of the Will dated 22.8.1980 and on perusal of the said Will it was revealed that there is no mention in the Will abut agricultural land or any Baithak at village Firozpur and Will was executed only for a shop. It was stated that the respondent no. 8 is not agreeable about giving his share to the petitioner in the agricultural land of Sh. Hari Ram Tyagi and it was prayed that no objection dated 31.12.10 be treated as null and void. It was stated that the Will in question is forged and fabricated document and petition deserve dismissal.
7. Separate replies to objection of objectors no.
2,4,5,6,11,13,14,15,16,17,18,20,21 & 22 and to objections of respondent no. 8 were filed on behalf of the petitioner in which contents of the petition PC-6/12 Page:-9/26 were reiterated and those of the objections were denied.
8. Rejoinder to the reply of petitioner was filed by the objectors wherein contents of the reply were denied and those of the objections were reiterated.
9. Vide order dated 30.10.12 from the pleadings of parties, the following issues were framed:-
1) Whether the Will in question dated 22.8.1980 is true and genuine? OPP
2) Whether the probate can be granted in favour of petitioners?OPP
3) Relief.
10. In evidence, petitioner produced PW-1 Sh. Rajiv Krishan Bindal, Advocate, PW-2 petitioner himself, PW-3 Laxmi Narayan, PW-4 Sh. S.M. Anis. PW-1 Sh. Rajiv Krishan Bindal, Advocate stated himself to be one of the attesting witness of the Will dated 22.8.1980 which was Ex. PW-1/1. He identified his signatures, signatures of other witnesses and signatures and thumb impression of the testator. He stated that one affidavit was given by him to the Commissioner, Meerut which was Ex. PW-1/2. He also stated that the present petition was verified by him. PW-2 is the petitioner who reiterated his case as set out in the petition and relied upon copy of his election I card Ex. PW-2/1, the original affidavit of the attesting witness PC-6/12 Page:-10/26 namely Sh. Rajiv Krishan Bindal filed before Uppar Ayukt Meerut Ex.PW-1/2, death certificate of late Sh. Hari Ram Tyagi Ex. PW-2/2, Will dated 22.8.1980 Ex. PW-1/1, no objection of 13 respondent Ex. PW-2/3, certified copy of the letter dated 27.5.11 as well as evidence recorded before Upper Aayukt Meerut Ex. PW-2/4 to PW-2/5, death certificate of mother and father of petitioner Ex. PW-2/6 and PW-2/7, details of nine brothers of the deceased Hari Ram Tyagi and details of properties mentioned in Annexure-A and B were Ex. PW-2/8 and PW-2/9. PW-3 stated that his father Sh. Karan Singh @ Karan Sharma had singed over the Will dated 22.8.80 in capacity of attesting witness. He relied upon death certificate of Karan Singh @ Karan Sharma Ex. PW-3/1 and election I card was Ex. PW-3/2, his election I card Ex. PW-3/3. PW-4 Sh. S.M. Anis, Advocate stated himself to be the attesting witness to the Will Ex. PW-1/1a and identified his signatures, signatures and thumb impression of testator as well as signatures of other witnesses.
11.In defence, objectors examined RW-1 Nank Chand who reiterated the case of the objectors as set out in the objections.
12.I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the PC-6/12 Page:-11/26 arguments addressed by counsel.
13. Issue no. 1 and 2 :- Before proceeding to decide these issue, I would like to discuss the relevant law and judgments on this point. Section 278 of Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
14.Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and
PC-6/12 Page:-12/26
disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vashram Vs. State of Gujrat. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Ku. Chandan & Anr. Vs. Longa Bai& Anr."
15.Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign 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 testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the PC-6/12 Page:-13/26 testator, or has received from the testator a personal acknowledgment of his signatures 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."
16.Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
17. So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the witness may be more than two but not less than two. The non-compliance with the requirement of the attestation in respect of the Will, which is otherwise valid PC-6/12 Page:-14/26 and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Mst. Gullan Devi Vs. Mst. Punu @ Puran Devi & Ors. AIR 1989 J&K 51.
18. In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
19. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or PC-6/12 Page:-15/26 fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
20.The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence PC-6/12 Page:-16/26 properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in (1971) 1 MLJ 127 P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear PC-6/12 Page:-17/26 provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
21.In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as PC-6/12 Page:-18/26 evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, 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 deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on PC-6/12 Page:-19/26 the question of the proof of wills. It would prima facie 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 S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR
578.
22.The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of-course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been PC-6/12 Page:-20/26 brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc.
23. In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively.
24. Now I have to see whether in the present case the above principles have been duly made out or not. As far as the ingredient whether the testator was in sound disposing mind at the relevant time of execution of the Will is PC-6/12 Page:-21/26 concerned though objectors have raised the objection that deceased testator was not in sound state of mind at the relevant time of the execution of the Will in question, however except for the bald assertion no medical document has been produced on record by the objectors to support their said contention. Even RW-1 in his cross examination admitted that he does not possess any medical record pertaining to illness of Sh. Hari Ram Tyagi. Though in the death certificate of testator Ex. PW-2/2 duration of illness is mentioned as four months but the same does not reflect as to what type of illness the testator was suffering from and whether the illness was such that it effected his mental cognitive faculties. There is no medical document on record to show that the testator was suffering from any such disease which could have effected his cognitive faculties. It may be possible that testator was suffering from some old age problem but in absence of any medical document it cannot be held that the testator was not in sound state of mind at the relevant period of execution of Will in question. Hence it is held that testator was not suffering from any disease at the relevant time of execution of the Will which would have effected his cognitive faculties.
25. Now I will deal with the question of valid execution of the Will. The first PC-6/12 Page:-22/26 objection taken by the objector is that the Will dated 22.8.1980 was not pressed by the father and mother of the petitioner and has seen the light of the day after 32 years of its execution. It was stated on behalf of objectors that the property in question already stood mutated in the name of all brothers of the deceased and had there been any such Will then father of the petitioner would have pressed the same. On the other hand petitioner has pleaded that his parents were not in knowledge of the Will and on sudden introduction of the petitioner with Sh. R.K. Bindal, Advocate on 21.12.10 in regard of relations with Hari Ram Tyagi the factum of Will came in the knowledge of the petitioner. The Objectors' witness RW-1 himself destroyed the above plea taken by the objectors since during cross examination he admitted that Will in question was not in possession of parents of petitioner that is why they have not filed any objection at the time of mutation of agricultural land in the name of other brothers. The said admission has rather supported the version of the petitioner and accordingly in view of the same the above plea taken by the objectors stands rejected and it is held that delay in pressing the Will in question has been duly explained by the petitioner.
26. Further, it has been argued by the objectors that Will in question does not PC-6/12 Page:-23/26 find mention of agricultural land and only talks about only one rented shop. Though it is correct that the Will in question does not find specific mention of the agricultural land, however it is written that the testator bequeath and give to Smt. Bimla all his properties movable and immovable. When the the words 'all his properties movable and immovable' find mention in the Will then there remains no doubt remains that the intention of the testator was that he wanted to bequeath all his properties whether movable or immovable in favour of the beneficiary and just there is no specific mention of any specific property would not be sufficient to discard the Will in question. Accordingly said contention of the objectors is also rejected.
27. It is was further contented by the objectors that PW-1 wrongly stated the age of the testator as 80 years during cross examination and even stated that perhaps the Will was drafted by Sh. S.M. Anees whereas Sh. S.M. Anees stated that the Will was prepared in their office when he and R.K. Bindal were sitting together. The statements of PW-1 Sh. R.K. Bindal and PW-4 Sh. S.M. Anis, advocate who were both attesting witnesses to the Will in question have remained corroborated in respect of execution of the Will. They have categorically stated that the Will in question was executed by the testator and they both identified their signatures, signatures of other PC-6/12 Page:-24/26 attesting witnesses as well as signatures and thumb impressions of the testator and mere contradiction in drafting of Will or wrong mentioning of age of testator would not be sufficient to discard entire testimony of these witnesses which otherwise remained corroborated. It is also to be considered that Will in question is dated 22.8.1980 and statements of witnesses were recorded in the year 2013 i.e. after lapse of 33 long years and it is quite possible that during such long period each and every details cannot be remembered and mistakes while deposing in the court are bound to happen. The above contradiction are minor in nature and can be attributed to lapse of such long period and even otherwise does not have bearing on the Will in question. Rather in the Will in question the testator had given reasons for bequeathing his properties in favour of Smt. Bimla Devi which was that Smt. Bimla Devi had been taking care of him in his illness. Accordingly, considering the facts and circumstances of the case and deposition of witnesses who appeared before the court, the authenticity and genuineness of the Will dated 22.8.1980 Ex. PW-1/1 stands proved. The Will dated 22.8.80 has been proved to be executed by deceased in sound disposing mind of his own free will and in view of testimony of PWs the same is held to be the last testamentary disposition of deceased Garu Ram Tyagi. However, perusal of Will PC-6/12 Page:-25/26 shows that Smt. Bimla Tyagi, mother of petitioner was appointed as executor by testator in the said Will who unfortunately had expired and therefore probate in these circumstances, cannot be granted and as per section 276 of the Indian Succession Act, letter of administration can be granted to petitioner. Hence, case in favour of petitioner is made out for grant of letter of administration. Accordingly these issues are decided in favour of the petitioner and against the respondents/objectors.
28.Relief:- In view of the above finding, the petition is allowed. Letter of administration be issued in favour of petitioner in respect of estate of deceased Hari Ram Tyagi as detailed in Will dated 22.8.80 to enable the petitioner to administer the aforesaid property of deceased. It be accordingly granted after completion of required formalities in this context i.e. filing of requisite court fee, administration bond alongwith one surety bond of the amount of valuation in accordance with law. This file be consigned to record room.
Announced in open court (Ajay Goel) on 15.5.14 ADJ-12(Central)/Delhi PC-6/12 Page:-26/26