Delhi High Court
Smt. Anita Khosla vs State & Ors. on 21 October, 2010
Author: V.K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 20.10.2010
Judgment Pronounced on: 21.10.2010
+ TEST CASE NO. 41/2005 & I.A. No.8309/2005
SMT. ANITA KHOSLA ..... Petitioner
- versus -
STATE & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr R. Vasudevan For the Respondents : Mr Hari Chand CORAM:- HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes V.K. JAIN, J
1. This is a petition under Section 276 of the Indian Succession Act for grant of probate in respect of the Will of late Smt. Lalita Kapoor. It has been alleged in the petition that late Smt. Lalita Kapoor, who expired on 15th July, 2004, had left behind a Will dated 02nd April, 2003, that being her last Will and Testament, which was duly TEST CASE NO.41/2005 Page 1 of 16 registered in the office of Sub-Registrar . The petitioner is the daughter of the deceased, respondent No.2 Narinder Kapoor is the son of the deceased and respondent No.3 and respondent No.4 are the widow and daughter respectively of late Shri Rakesh Kapoor, another son of the deceased Testator.
2. On publication of citation in the newspapers and issue of notice to the respondents, objections were filed by respondent Nos. 3 and 4. It was alleged in the objections that Smt. Lalita Kapoor had no right, title or interest in any part of property No. 163 Golf Links, which is the subject matter of the Will, alleged to have been executed by her and, therefore, she had no power of disposition with respect to that property. It was claimed that late Shri C.L. Kapoor, husband of late Smt. Lalita Kapoor, was the owner of the aforesaid property, till his demise. The objectors denied execution of the Will dated 02nd April, 2003 and claimed the same to be a forged document.
Respondent No.2, however, stated that property No.163 Golf Links was partitioned between late Shri C.L. Kapoor and late Smt. Lalita Kapoor and under that partition, the ground floor alongwith one servant quarter fell TEST CASE NO.41/2005 Page 2 of 16 to the share of late Smt. Lalita Kapoor, whereas the rest of the property fell to the share of late Shri C.L. Kapoor. He also admitted that late Smt. Lalita Kapoor died on 15th July, 2004, leaving behind the Will dated 02nd April, 2003, bequeathing her share in property No.163 Golf Links to her daughter Anita Khosla.
3. The following issues were framed on the pleadings of the parties:-
1. Whether the „Will‟ dated 02nd April, 2003 is the validly executed and last „Will‟ of late Smt. Lalita Kapoor? OPP
2. Whether the plaintiff is liable to be granted probate of the „Will‟ dated 02nd April, 2003? OPP
3. Relief.
4. The petitioner examined six witnesses in support of her case. No witness was examined by the objectors.
Issue No.1
5. The execution of an unprivileged Will is covered by Section 63 of Indian Succession Act, which reads as under:-
"Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[ or an airman so employed or TEST CASE NO.41/2005 Page 3 of 16 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 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 testator, or has received from the testator a personal acknowledgment of his signature or mark, or of 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."
6. PW-2 Shri Rajiv Mathur and PW-3 Devender Kumar Sharma are the attesting witnesses of the Will Ex.PW-1/1, set up by the petitioner. Shri Rajiv Mathur stated that he had cordial relationship with the family members of Shri C.L. Kapoor and that Smt. Lalita Kapoor had informed that she was executing a Will. She required TEST CASE NO.41/2005 Page 4 of 16 his presence as a witness and asked him to be present at the office of Sub-Registrar at Vikas Sadan, New Delhi in the morning of 02nd April, 2003. When he arrived at the office of Sub-Registrar at Vikas Sadan, Smt. Lalita Kapoor was already present with a typed Will in her hand. One person Shri Devender Kumar Sharma, who was already present, was introduced to him and he was informed that Shri Devender Kumar Sharma is the second witness of the Will. Late Smt. Lalita Kapoor signed the Will Ex.PW-1/1 first in the presence of both of them. Thereafter, it was signed by Shri Devender Kumar Sharma followed by signing by him. According to the witness, thereafter, he appeared before the Sub-Registrar where his signature and thumb impression were obtained at the back of the Will Ex.PW-1/1. He identified the signature of Smt. Lalita Kapoor at point „A‟ and „B‟ and his own signature at point „C‟ on the Will Ex.PW-1/1. He also identified his signature and thumb impression at point „D‟ on this document. He further stated that at the time of the execution of the Will Ex.PW-1/1 on 02nd April, 2003, late Smt. Lalita Kapoor was healthy and mentally fit and told him that she was executing a Will of her own free will.
TEST CASE NO.41/2005 Page 5 of 16
7. Smt. Devender Kumar Sharma, who came in the witness box as PW-3, corroborated the deposition of PW-3 and stated that he had come to know late Colonel S.C. Malik, younger brother of late Smt. Lalita Kapoor when he was working in Army Headquarters. He, therefore, had occasion to meet Smt. Lalita Kapoor as well. Shri S.C. Malik informed him on telephone that Smt. Lalita Kapoor wanted to execute a Will and since she needed a witness he had suggested his name, he being a Government servant. He agreed to attend the office of Sub-Registrar for this purpose. When he arrived at the office of Sub-Registrar, he met Smt. Lalita Kapoor, who was already present there and had a typed Will in her hand. According to the witness, Smt. Lalita Kapoor signed the Will first in their presence then it was signed by Shri Rajiv Mathur and thereafter by him. He also stated that thereafter they appeared before the Sub-Registrar for registration of the Will and his signature and thumb impression were also obtained at the back of the Will. This witness also identified the signatures of Smt. Lalita Kapoor at point „A‟ and „B‟ on the Will Ex.PW-1/1. He also identified his own signature at point „E‟ and her signature and thumb impression at point „F‟. He also TEST CASE NO.41/2005 Page 6 of 16 confirmed that at the time of the execution of the Will on 02nd April, 2003, Smt. Lalita Kapoor was healthy and mentally fit.
8. PW-4 Shri Vipin Mehra is the Government approved valuer, who valued the jewellery of deceased Smt. Lalita Kapoor vide his report Ex.PW1/5. His testimony is, therefore, not relevant to execution of the Will. PW-5 Shri E.Dean is the Manager with the Delhi Safe Deposit Company Limited, who produced the record of Locker No.2384-C, which is Ex.PW-5/1. The locker was in the joint name of Late Shri C.L. Kapoor, Smt. Lalita Kapoor and Mr Naraind Kapoor.
9. PW-6 Shri Sunil Srivastva is an official of Sub- Registrar-VII, Vikas Sadan, New Delhi. As per the record produced by him, one Will, executed by Smt. Lalita Kapoor, was registered on 02nd April, 2003 vide Registration No.46 in additional book No.3, Vol. No.341 on pages 27 & 28. Ex.PW-1/1, according to the witness, is that Will.
10. PW-1 Smt. Anita Khosla is the petitioner before this Court. She also has identified the signature of her mother late Smt. Lalita Kapoor at point „A‟ and „B‟ on the Will Ex.PW-1/1.
TEST CASE NO.41/2005 Page 7 of 16
11. During cross-examination of PW-2 Shri Rajiv Mathur, no suggestion was given to him by the objectors that the Will Ex.PW-1/1 does not bear signature of late Smt. Lalita Kapoor. No suggestion was given to him that the photograph, affixed on the Will Ex.PW-1/A, is not that of Smt. Lalita Kapoor. No suggestion was given to him that late Smt. Lalita Kapoor was not in a fit state of health and mind when she executed the Will Ex.PW-1/A. No suggestion was given to him that he had not signed the Will Ex.PW-1/1, as an attesting witness. In fact, no infirmity, in the testimony of this witness, was pointed out by the learned counsel for the objectors. Similarly, during cross- examination of Shri Devender Kumar Sharma, no suggestion was given to him that the Will Ex. PW-1/1 does not bear signature of Smt. Lalita Kapoor at points „A‟ and „B‟. No suggestion was given to him that the Will Ex.PW- 1/A was not signed by him as an attesting witness and/or it does not bear his signature and/or thumb mark. No suggestion was given to him that he did not appear before the Sub-Registrar on 02nd April, 2003.
The testimony of PW-3 was assailed by the learned counsel for the objectors on the sole ground that he was TEST CASE NO.41/2005 Page 8 of 16 requested by the brother of the deceased and not by the deceased herself, to be a witness of her Will. This, to my mind, was absolutely immaterial. The witness has specifically stated that on account of his friendship with Colonel S.C. Kapoor, he had also come to know late Smt. Lalita Kapoor and also had occasions to meet her. He being a Government servant there was nothing unusual or suspicious in the Testator, requesting him through her brother, to be an attesting witness to her Will.
12. It was contended by the learned counsel for the objectors that since PW-2 and PW-3 did not sign in the presence of each other, there was no proper execution of the Will. I, however, find no merit in the contention. The evidence on record does not show that PW-2 was not present when the Will was attested by PW-3 or that PW-3 was not present when it was attested by PW-2. In fact, their affidavits indicate that both of them were present together when the Will was first signed by the Testator and then by these witnesses. Moreover, a bare perusal of Section 63(c) of Indian Succession Act would show that a Will is required to be attested by two or more witnesses and each of them must have seen the Testator sign or affixing his mark to the TEST CASE NO.41/2005 Page 9 of 16 Will or should have seen some other person signing the Will in the presence and under the directions of the Testator or should have received a personal acknowledgement from the Testator with respect to his signature or mark or signature of the another person who signs the Will in the presence and under the direction of the Testator and it is also necessary that each witness should sign the Will in the presence of the Testator. This, however, is not the requirement of law in India that both the attesting witnesses should also sign in the presence of each other.
13. Though the English law requires that both the witnesses must be present at the same time and both must see the Testator execute the documents as his Will, the Indian law expressly lays down to the contrary by providing in clause 6(c) of Section 63 that "it shall not be necessary that more than one witness be present at the same time." In fact, it is also not necessary that all the witnesses must see the Testator sign. It may as well happen that one witness may see the executor sign and the other witness may not see him sign, but the Testator may acknowledge his signature before him.
14. There are number of modes of proving signature or TEST CASE NO.41/2005 Page 10 of 16 writings of persons, such as, by calling the person who signed or wrote the document; by calling a person in whose presence the document was signed or written; by calling a handwriting expert; by calling a person acquainted with the handwritings of the person by whom the document is supposed to be signed or written; by comparison in Court of the disputed signatures or writings with some admitted signatures or writings; by proof of an admission by the person, who is alleged to have signed or written the document that he signed or wrote it, etc. In case the document happens to be a Will, there is a slight distinction, which has to be kept in mind. Unlike other documents, the Will speaks from the death of the Testator, and so, where it is propounded or produced before a Court, the Testator who has already departed the world cannot be called upon to say whether it is his will or not.
15. Section 68 of Evidence Act, to the extent, it is relevant, provides that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness 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 TEST CASE NO.41/2005 Page 11 of 16 giving evidence." Since the Will is a document required by law to be attested by at least two witnesses, the petitioner could have proved it by producing one of the attesting witnesses of the Will. The petitioner has duly proved execution of the Will dated 02nd April, 2003, by producing not one, but both the attesting witnesses to the Will.
16. In „Madhukar D. Shende vs Tarabai Aba Shedage‟ 2002 (2) SCC 85 Supreme Court inter alia observed as under:-
"It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the Court would not return a finding of „not proved‟ TEST CASE NO.41/2005 Page 12 of 16 merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance."
17. In „Girja Datt Singh vs Gangotri Datt Singh‟ AIR 1955 SC 346, it was held that in order to prove the due attestation of the will the propounder of the will has to prove that the two attesting witnesses saw the Testatory sign the will and that they themselves signed the same in the presence of the testator. As regards the proof and attestation, reference was made to Section 68 of the Evidence Act and it was held that it is necessary to comply with the provisions of the Evidence Act to prove the due execution and attestation of the will by calling at least one attesting witness in case he is alive and one cannot presume from the mere signatures appearing at the foot of the endorsement of registration or at the foot of the document that the witnesses appended their signatures to the documents as attesting witnesses.
18. In the present case, the petitioner has discharged the onus placed upon her by producing evidence to prove the testamentary capacity of the testator as well as execution of the Will in the manner prescribed by Section TEST CASE NO.41/2005 Page 13 of 16 63 the Indian Succession Act. No material has been brought on record by the Objectors which would create suspicion on the execution of the Will, which otherwise is a registered document and also bears the signature of the testators. There is no material from which the Court may infer that the deceased did not know the contents of the Will or was not in a sound disposed capacity when she executed this Will on 2nd April 2003. In fact, no evidence at all has been produced by the Objectors to rebut the evidence produced by the petitioner.
19. The testimony of PW-2 and PW-3 shows that the Will Ex.PW 1/1 was signed by late Smt Lalita Kapoor of her own free will and that at the time of signing the Will on 2 nd April 2003, she was in a sound and disposing state of mind. In fact, the deceased-testator expired more than one year after she had executed the Will and got it registered. The Will admittedly bears the photograph of late Smt. Lalita Kapoor. It was also duly registered with the Office of Registrar on the same day and the registration has been confirmed by an official from his office. The petitioner has, therefore, fully discharged the onus placed on her with respect to due attestation and proof of the Will. TEST CASE NO.41/2005 Page 14 of 16
20. Though the objectors have claimed that late Smt. Lalita Kapoor did not have any right, title or interest in property No. 163 Golf Links and, therefore, had no power of disposition in respect of that property, no issue on this plea has been framed and rightly so. In a petition for grant of probate, the Court is not concerned with the title of the Testator with respect to the property bequeathed by him/her. What the Court has to see whether the Will was duly executed and whether its execution has been proved in accordance with law or not. Obviously, if Smt. Lalita Kapoor herself did not have any right, title or interest in the property, subject matter of the Will executed by her, the legatee will not derive any right, title or interest in that property, on the basis of such a Will. If the Testator had an interest less than that claimed by her in her Will in respect of a property, the legatee will get only that much interest as was vested in the Testator, with respect to that property. A perusal of the order dated 27th February, 2008 would show that at the time of framing of issues, the learned counsel for the objectors did not press the objection with respect to the alleged partition of the property.
TEST CASE NO.41/2005 Page 15 of 16 Issues Nos. 2 & 3
21. In view of my finding on issue No.1, the petitioner is entitled to grant of probate in respect of the Will executed by late Smt. Lalita Kapoor on 02nd April, 2003.
22. The petition is hereby allowed. A probate of the Will executed by late Smt. Lalita Kapoor on 02nd April, 2003 be, therefore, issued to the petitioner under Section 276 of Indian Succession Act with copy of the Will annexed to it.
(V.K. JAIN) JUDGE OCTOBER 21, 2010 BG/AG/RS TEST CASE NO.41/2005 Page 16 of 16