Delhi District Court
Smt. Shakuntala Devi Wd/O Late Sh. ... vs State on 10 July, 2013
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
(CENTRAL) DELHI.
PC-72/2011/02
In the Matter of:
Sh. Ramesh Chand(now deceased)
through his LRs
1. Smt. Shakuntala Devi Wd/o late Sh. Ramesh Chand
2. Kumari Sheela Gola d/o late Sh. Ramesh Chand
3. Sh. Mahesh Kumar s/o late Sh. Ramesh Chand
4. Kumari Raman Gola d/o late Sh. Ramesh Chand aged 16 years
All r/o house no. 3754-56 Gali Ram Nath Patwa Tel Mandi,
Paharganj New Delhi and Kumari Raman Gola Through her
mother and natural guardian Smt. Shankuntala Devi
r/o house no. 3754-56, Gali Ram Nagh Patwa, Tel Mandi
Pahar Ganj, New Delhi.
5. Smt. Saroj Prakash d/o late Sh. Ramesh Chand and Smt.
Shankuntala Devi
House no. 3754- Gali Ram Nath Patwa, Tel Mandi, Paharganj,
New Delhi.
......Petitioners.
VERSUS
1. State
2. Smt. Kamla Devi
Wd/o Late Sh. Banwari Lal
3. Sh. Mukesh Kumar
4. Sh. Dinesh Kumar
Both sons of Late Sh. Banwari Lal
r/o House no. 3754-56 Gali Ram Nath Patwa,
Paharganj, New Delhi-110055
PC-72/11/02 Page No. 1/21
5. Smt. Renu
w/o Sh. Ramesh Kumar
c/o Smt. Kamla Devi
House no. 3754-56
Gali Ram Nath Patwa, Paharganj, New Delhi-110055
Respondents no. 1-4 are the legal heirs of deceased Sh. Banwari
Lal who has died on 11.2.01
6. Smt. Hanso Devi
w/o Sh. Ram Singh
r/o H.No. 767, Gali No. 5
Janakpuri, Ludhinana(Punjab)
7. Sh. Nand Kishore
s/o late Sh. Nand Lal
r/o H.No. 3467, Dariba Pan
Paharganj, New Delhi-110055
8. Smt. Imarti Devi
w/o Sh. Rama Nand
Village Safiyabaad
P.O. Nathupur
Distt. Sonepat(Haryana)
9. Smt. Omwati
w/o Sh. Raj Singh Khadsia
Asstt. Commandant CISF
Quarter No. C-323, Sector-1
Balco Nagar, Korba(M.P.)
10.Smt. Gyanwati
w/o Sh. Om Prakash
r/o H.No. C-3/113, Nanda Block
Mahavir Enclave, Mangla Puri, Palam,
Delhi.
......Respondents.
Date of Institution: 22.2.02
PC-72/11/02 Page No. 2/21
Date of Assignment to this court: 28.8.12
Date of Arguments: 10.7.13
Date of Decision: 10.7.13
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition under section 276 of the Indian Succession Act, 1925 for grant of probate/letter of administration in respect of the properties of Late Sh. Nand Lal s/o Late Sh. Roop Ram filed by petitioners against the respondents. The brief facts of the case are that late Sh. Nand Lal s/o late Sh. Roop Ram was resident of Delhi and died at Delhi on 18.12.96 and left behind his last Will and testament dated 9.8.95 whereby he bequeathed his immovable properties as mentioned in para 6 of the petition and list attached as Annexure-B in favour of the petitioner who was son of late Sh. Nand Lal who is now being represented through his LRs since deceased. It was further stated that late Sh. Nand Lal married twice. Firstly he married with Smt. Har Devi and out of the said wedlock two sons namely Ramesh Chand, petitioner, Sh. Banwari Lal and one daughter namely Smt. Hanso Devi were born whereas out of the second wedlock with Smt. Romali one son namely Nand Kishore and three daughters namely Imari, Omwati, Gianwati were born. As stated Sh. Banwari Lal was also the son of PC-72/11/02 Page No. 3/21 deceased Nand Lal also expired and is survived by respondents no. 2 to 5 who are his legal heirs. Respondent no. 7 is the son of deceased out of his second wedlock. As stated respondents no. 6, 8,9 and 10 are the daughters of deceased Sh. Nand Lal. Hence, it was prayed that probate be granted to the petitioners in respect of Will dated 9.8.95 with respect to immovable properties/shares in immovable properties left by the deceased in Annexure-B.
2. After the petition was filed notice of the same was 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 "
National Herald" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper " National Herald" on 23.5.02.
4. During proceedings Respondent no. 6 Hanso Devi filed her no objection to the present petition on 6.8.02.
5. Objections to the present petition were filed by all the respondents except respondent no. 6 wherein it was stated that the present petiton ahs been filed by the petitioner just to harass the respondent with oblique purpose and the alelged Will dated 9.8.1995 is forged Will as deceased fther of the PC-72/11/02 Page No. 4/21 respondents never executed any Will in favour of the petitioner. It was stated that the suit property is an ancestral property and all the respondents are entitled for equal share in the said property. It was also stated that the petitioner has not come to the court with clean hands and has suppressed the material fact that another suit for partition which was pending before Hon'ble High Court of Delhi since 1978 which was transferred to District Court wherein application of LRs of deceased is pending since 1996 and in the said petition, the petitioner did not disclose regarding the alleged Will. It was stated that the alleged Will is forged and is having forged signatures of the deceased. It was stated that the alleged Will is also contradictory as the possession of the alleged property is not in exclusive possession of the petitioner but the same is with the respondents and even the said Will is not witnesses by any other persons except an Advocate. Accordingly it was prayed that the present petition be dismissed.
6. Reply to the objections was filed by the petitioners in which case as set out in the petition is reiterated and that of the objectors was denied.
7. Vide order dated 22.7.03, from the pleadings of parties, the following issues were framed:-
1. Whether the petition is within limitation?
PC-72/11/02 Page No. 5/21
2. Whether the Will dated 9.8.1995 was executed by late Sh. Nand Lal? If so, whether the same has been validly executed in sound disposing state of mind?
3. Relief.
8. In evidence, petitioners have produced three witnesses in support of their case including i.e. PW-1 Sh. B.L. Babbar, PW-2 Sh. L.N. Babbar and PW-3 Smt. Shakuntala Devi. PW-1 in his evidence has stated that he is practising as an Advocate since the year 1992 and the Will Ex. PW-1/1 was signed by Sh. Nand Lal in his presence and the said Will was signed by him at point B and made endorsement encircled B-1 in his own hand. He stated that after he had put his signatures Sh. L.N. Babbar put his signatures at pint C-1. Thereafter Will was presented before the Sub Registrar. He identified the signatures of Sh. Nand Lal at points A3,A4 and A5. He also stated that the Will was readover in vernacular i.e. in Hindi in his presence to Sh. Nand Lal. PW-2 Sh. L.N. Babbar also supported the version of PW-1 and identified his signatures on the Will Ex. PW-1/1 at point A, A1 & A2 after admitting the contents of the same to be correct. PW-3 Smt. Shakuntala Devi widow of petitioner Ramesh Chand reiterated the contents of the petition.
9. In defence, respondents no. 2 to 5 and respondents no. 7 to 10 have PC-72/11/02 Page No. 6/21 produced six witnesses namely OW-1 Smt. Kamla Devi, OW-2 Sh. Nand Kishore, OW-3 Hari Kishan, OW-4 Smt. Sarla, OW-5 Gyanwati, OW-6 Smt. Imarti Devi. All the above objectors in evidence have reiterated their stand that the deceased Nand Lal never executed the alleged. Will dated 9.8.1995 and the same is forged.
10. I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsel.
11.Issue no. 1 2 and 3 :- All the issues are taken up together. 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.
12. Section 2(h) of the Indian Succession Act describes the Will to be a PC-72/11/02 Page No. 7/21 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 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 Vs. State. 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 Chandan Vs. Longa Bai."
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 PC-72/11/02 Page No. 8/21 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.
13.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.
14. 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-72/11/02 Page No. 9/21 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."
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 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 PC-72/11/02 Page No. 10/21 and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51.
15. 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 evidence until one attesting witness at least has been called for the purpose PC-72/11/02 Page No. 11/21 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 the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any PC-72/11/02 Page No. 12/21 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.
16. 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 fraud and the petitioners were required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
17. 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 PC-72/11/02 Page No. 13/21 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 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.
18. 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 PC-72/11/02 Page No. 14/21 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 properly admissible, and the meaning of the will and of every part of it is determined according to that intention."
Similarly, in 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 PC-72/11/02 Page No. 15/21 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 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."
PC-72/11/02 Page No. 16/21
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.
19. Now I have to see whether in the present case the above principles have been duly made out or not.
20.Firstly I will deal that the alleged Will Ex. PW-1/1 was executed by the testator in a healthy state of mind. Though in objection filed by all the respondents except respondent no. 6 no word had been uttered regarding the health of the deceased testator, however during evidence all the RWs have stated that at the time of death of the testator he was suffering from number of deceases and was not in sound mind 3 /4 years prior to his death. Except for the said oral testimony no medical record/documents pertaining to deceased testator has been produced on record by the objectors. In absence of any medical evidence, mere fact that testator was 85 years of age at the time of his death is not sufficient to presume that his PC-72/11/02 Page No. 17/21 cognitive organs were not functioning well. Objectors have simply stated that 3-4 years prior to his death the testator was suffering from serious diseases and mostly remained at hospital, however objectors have failed to prove on record as to what were the serious diseases from which testator was suffering and whether those diseases had any impact on the mind of the testator or not. Only in deposition of OW-2 Nand Kishore it has been mentioned that testator suffered a heart attack but again a heart problem cannot be associated with bad mental condition. Rather OW-2 during cross examination admitted that at the time of execution of Will dated 29.6.94 his father was enjoying sound health and disposing mind. Even perusal of the Will Ex. PW-1/1 shows that testator was even conscious about his earlier registered Will and gave all the particular of it as well as made certain modifications in the same. When as per the own testimony of OW-2 testator was in sound disposing mind on 29.6.94 and there is nothing on record to presume that after almost one year i.e. on 9.8.95 on which date Will in question was executed or in between the testator's cognitive organs were not functioning properly, hence there is no occasion to believe that testator was not in sound disposing mind as on date of execution of the Will. Even independent witnesss Smt. Sarla OW-4 during cross PC-72/11/02 Page No. 18/21 examination firstly admitted that Nand Lal was not having ailment but again said she did not know if he was having any ailment. Later on she again admitted that he was having good health. The statement of this witness has remained shaky. So respondents/objectors have failed to prove their plea that the testator was not in sound mind at the time of execution of the Will and the same was not executed out of free will, without force or coercion.
21.Now the other requirement fulfillment of which is to be seen is regarding the nature and execution of the Will dated 9.8.1995. The evidence regarding the same is on record and has been gone through. The Will Ex. PW-1/1 was signed by two attesting witnesses namely Sh. B.L. Babbar, Advocate and Sh. L.N. Babbar, Advocate. Both the attesting witnesses have appeared in witness box as PW-1 and PW-2 and have clearly stated that the Will was executed and signed by the testator in their presence at point A, A-1 and A2 and they also signed the said Will at points B and C-1. They even stated that the Will was read over to the testator in their presence. No dent could be created in their testomony during cross examination and their depositions have remained intact and corroborated throughout. Rather OW-2 Nand Kishore during his cross examiantion PC-72/11/02 Page No. 19/21 admitted execution of previous Will of testator dated 29.6.94 and even stated the same to be in his possession which give strength to the case of the Will in question dated 9.8.95 which finds mention of Will dated 29.6.94. It is also worth pointing out here that why Will dated 29.6.94 was not produced on record by OW-2/respondent no. 7 when he was having the same since if respondent no. 7 could have produced the said Will then it would have facilitated comparison of signatures of testator on Will dated 9.8.95 and decision could have easily been made whether the Will dated 9.8.95 is forged or not, however it has not been done so by respondent no. 7 which casts shadow of doubt on the intention of the objectors themselves and weakens their case. Hence petitioners have been able to prove valid execution of the Will dated 9.8.95 by producing the two attesting witnesses whoes testimony remained corroborted on record.
As far as question of limitation is concerned the testator died on 18.12.96, the Will in question was executed on 9.8.95 whereas the present petition was filed on 22.2.02 i.e. after five years of death of the testator. There is bar or any period specified for filing the probate petition by the beneficiaries of it. Though filing of probate in short duration after death of testator do not give rise to any suspicion but span of five years is not that PC-72/11/02 Page No. 20/21 to long period and when verasity and genuineness of the Will in question already stood proved, hence point of limitation does not arise. Accordingly it is held that Will dated 9.8.95 is genuine and last testamentary document of the testator made in sound disposing mind and is free from any kind of force, theft or coercion etc. Hence, in view of the above, all the issues are decided in favour of the petitioners and against the respondents.
22. Relief :- In view of the findings the petition is allowed. Probate is granted in favour of petitioners qua the properties as mentioned in Annexure-B as per their share in Will Ex. PW-1/1 of the deceased late Sh. Nand Lal. 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. File be consigned to record room.
Announced in the open court on (AJAY GOEL)
10.7.13 ADJ-12(Central)Delhi.
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