Delhi District Court
Judgment vs . on 8 February, 2010
1
In the court of ASHWANI SARPAL, Additional District Judge-05,
West District, Tis Hazari Courts, Delhi.
S. Gurbir Singh Arora (Deceased)
vs.
State & others
(PC no. 294/06/00)
Date of institution=27-1-2000
Date of decision====8-2-2010
(Petition u/s 270/278 of the Indian Succession Act
for grant of Probate/Letter of Administration)
****************************************
JUDGMENT:-
As per petitioner, Sh. Inder Singh Arora (herein after referred to as deceased) was the owner of shop no. 74, Gokhle Market, Delhi and was having 607 UTI certificates. He died on 21-12-1999 leaving behind his two sons i.e. petitioner and respondent no. 2 and one daughter i.e. respondent no. 3. Petitioner on basis of registered Will of his father dated 23-12-1996 filed the present petition for grant of Probate/Letter of Administration. At the final arguments stage of the case, petitioner expired and his legal heirs were brought on record. The valuation of immovable property in question received from office of SDM is at Rs. 6,73,965/-.
Respondent no. 2 in his separate objections described the Will in question as forged and fabricated. He also disputed the capacity of the deceased to execute the Will in respect of shop in question and stated it to be an ancestral property being purchased from the funds of joint family ancestral property. Mental capacity of deceased to execute the Will was also challenged on the ground that he was suffering from various ailments, was in very poor 2 physical condition and had lost his memory.
Respondent no. 3 in her separate objections did not dispute the signatures of the deceased on the Will in question but alleged that it was not executed voluntarily and was a result of coercion and undue influence exercised by the petitioner upon him. She stated that deceased was not having sound disposing mind as he had executed total six Wills from time to time with different types of bequeaths even in favour of stranger. Respondent no. 3 also raised finger upon the conduct and impartiality of the attesting witnesses of the Will. She took some other grounds also to challenge the legality and validity of the Will in question dated 23-12-96.
Petitioner while denying the allegations of the respondents in his rejoinders affirmed the contents of the petition. On the basis of the pleadings of the parties, the following issues were framed by my ld. Predecessor vide order dated 21-3-2002:
1. Whether the Will dated 23-12-1996 as propounded by the petitioner was validly executed by the deceased S. Inder Singh Arora in his sound disposing mind and without any force, fraud or undue influence and the said Will was his last testament? OPP
2. Relief.
In order to prove his case, petitioner examined himself as PW-1 and his wife Smt. Baljinder Kaur as PW-2 being attesting witness of the Will. Statements of PW-3 Sh. L.S. Mishra from Standard Chartered Bank and PW-6 Sh. R.K. Sharma from Oriental Bank of Commerce are of no help as they could not produce the summoned record being already destroyed. PW-4 Sh. Man Singh from Allahabad Bank and PW-5 Sh. J.C. Singh from LIC produced record of bank account of the deceased and his life insurance policy.
Respondent no. 2 examined himself as R2W-1 whereas respondent no. 3 stepped into witness box as R3W-3 and also examined Sh. R.C. Sharma from SBI as R3W-2, Sh. Raghubir from office of Chief Settlement Commissioner as R3W-4. There is no witness at serial no. R3W-1. I have heard counsel for both the parties at length and gone through the record. My decision on the 3 above issues is as under:
Issue no. 1:-
The Will in question dated 23-12-1996 of the deceased is Ex. PX. It consists of five pages typed in English language and attested by witnesses Smt. Baljinder Kaur (PW-2) and Sh. Amarjeet Singh. Will also bears signatures of Sh. Mahavir Singh and Sh. Vinod K. Sharma advocates. Photograph of the deceased affixed on the Will Ex. PX is not denied by any respondent. Following points raised by the parties during arguments are discussed as under;
(A) Title of the property of the deceased:- Respondent no. 2 has taken a plea that property in question was not the self acquired property of the deceased Sh.
Inder Singh Arora as it was purchased from the funds of ancestral property so every legal heir of the deceased has an equal share in it. He challenged the capacity of the deceased to transfer it by way of Will on the ground that joint family or ancestral property having shares of others could not have been bequeathed by the deceased to anyone by treating it as his exclusive property. The statement of R3W-4 is infact to establish this fact. Respondent no. 2 is thus raising the question of ownership and title of the deceased but this objection is liable to be rejected straightway because in the probate proceedings, question of right, title, ownership and share is not to be considered at all as per the decision of Supreme Court given in case Chiranjilal Shrilal Goanka vs. Jasjit Singh (1993) 2 SCC 507. If respondent claim that property in question is an ancestral property and he has equal right and share in it, then he can file separate civil proceedings in this regard to establish his rights but in the present proceedings, it is not to be seen by this court whether property was self acquired property of the deceased or was an ancestral property. According to this judgment, even question whether property exists or not is also not to be considered by the probate court and court has only to see whether Will in question is genuine and validly executed or not. Accordingly the evidence led by the parties to prove the title of the immovable property or how deceased became its owner or acquired it has to be totally ignored.
(B) Signatures of deceased on Will:- Will Ex. PX bears number of signatures 4 and initials of the deceased on every page. Every cutting and correction on the Will is having initial of the deceased. Respondent no. 2 has totally described the Will in question as forged and fabricated whereas respondent no. 3 in her objections did not deny signatures of her father on the Will but alleged that it was executed under coercion and undue influence. Respondent no. 3 through her counsel at the time of admission-denial of documents had admitted only the signatures of deceased on the Will. In her cross examination, she admitted some signatures of her father on the Will whereas disputed few signatures. This stand taken by her is contradictory not only from her objections but also from admission made through counsel at admission-denial of documents stage. Respondent no. 2 has not examined any handwriting expert to prove that signatures of the deceased are forged. The responsibility to get disputed signatures of the deceased on Will compared with other admitted signatures was upon the respondent in which he has failed. On the other hand in his cross examination he admitted some signatures of his father on the Will. In such situation, it is held that atleast the Will bears the genuine signatures of the deceased. Slight difference in some of initials of the deceased on Will may have occurred due to shaking hand and old age but it is a natural variation and in absence of any expert opinion, the same cannot be held as forged or fabricated.
However simple admission of undisputed signatures itself on the Will is not sufficient to presume that it was executed voluntarily. Supreme Court in B. Venkaramuni vs. C.J. Ayodhya Ram Singh (2006) 13) SCC 449 held that court must satisfy its conscience as regards due execution of the Will by the testator and court would not refuse to probe deeper into the matter only because the signatures of the propounder on the Will is otherwise proved. Accordingly despite undisputed signatures on the Will, the court has to see the other alleged suspicious circumstances as disclosed by the respondents.
(C) Registration of the Will and presumption attached to it:- Registration of the Will is not compulsory. Law is well settled that registration of the Will alone does not prove that it was also duly executed. The Sub-Registrar signs the Will for the purpose of its registration and not for purpose of its attestation as held by Supreme Court in case Bhagat Ram vs. Suresh AIR 2004 Supreme Court 5
436. In this case, Supreme Court also held that on account of registration of a document including of Will or codicil, a presumption as to the correctness or regularity of attestation cannot be drawn. Registration of the Will is no guarantee that it was executed duly and validly as per the provisions of section 63 of Indian Succession Act. Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved. Presumption attached to the registered documents is only in respect of matters of the registration as per requirement of provisions of Indian Registration Act and not in respect of factum of attestation within the meaning of section 63 (c) of Indian Succession Act and section 68 of Indian Evidence Act. Accordingly petitioner is not entitled to any special benefit simply on the account that Will was registered one. No presumption of due execution of the Will can be raised in his favour due to its registration which fact petitioner is under obligation to prove as per law.
Otherwise also, the evidence on record does not establish that Will in question was registered in proper manner and by following prescribed procedure. It is admitted by PW-1 and 2 in their cross examination that neither PW-2 nor second attesting witness Sh. Amarjeet Singh had gone to the office of Sub-Registrar at the time of its registration. PW-1 had taken his father to the office of Sub-Registrar but he had not gone inside of the room of Sub-Registrar at the time of registration. He could not tell whether deceased had again signed or thumb marked his Will again or not before Sub-Registrar because advocates had taken him inside who have not been examined. Petitioner is not able to show that registration process was also duly followed in the office of Sub- Registrar. Further some lapses on the part of officials of Sub-Registrar which are being discussed below also leads to the inference that due procedure in getting the Will registered was violated and in that situation, even no presumption of due registration of Will can be raised.
However despite this fact that registration process in respect of the Will was not correct and there were number of lapses and irregularities committed by the office of Sub-Registrar at the time of getting the Will registered, then also in my view improper registration does not have any effect upon the due execution of the Will as the execution and registration of the Will in question had taken on two separate occasions and places. For the success of 6 this case, petitioner is required to prove the due execution of Will Ex. PX and not due registration.
(D) Differences in original Will and its copy kept in record of Sub- Registrar:- An application under section 340 Cr.P.C. was filed by the respondent no. 3 to prosecute the petitioner for forging the Will on the ground that there are number of differences in the original Will and its copy lying in the record of Sub-Registrar. Respondent no. 3 also placed on record the certified copy of Will in question obtained from office of Sub-Registrar. This court to find out such differences summoned the record from the office of Sub- Registrar and made observations in this regard in order sheet dated 25-9-2009.
Will Ex. PX was executed in the house wherein it was signed by the deceased and witnesses. It appears that photocopy of this executed Will was prepared before presentation to the Sub-Registrar. The photocopy of Will is ditto as the original is. However it appears that additional and extra signatures of deceased were obtained in the office of Sub-Registrar on that photocopy due to which one original and another photocopied signatures of the deceased had come in the certified copy. The relevant particulars filled up on the back of the first page of original and office copy of Will in the endorsement of Sub-Registrar are not proper and complete in all respects but those particulars were filled up by the officials of the Sub-Registrar and not by anyone else. However both original and photocopy bears the original stamp and seal of advocates which were affixed lateron in the office of Sub-Registrar. As advocates had put their original signatures and seal on the original and its photocopy subsequently so there is difference of slant, angle, space etc. of original signatures and seal of advocates on the original and photocopy. Respondent no. 3 had taken the certified copy of the photocopy of the Will in question from the office of Sub- Registrar so the above differences are visible in the original and certified copy. After seeing the office record summoned from office of Sub-Registrar and original Will and keeping in my observations dated 25-9-2009, I am of the view that infact there was no forgery or fabrication of Will but due to lapses and negligence on the part of officials of Sub-Registrar some differences have come in the endorsement columns for which petitioner or deceased cannot be found faulted with.
7In the original Will on the last page, the date of 23-12-1996 is written in hand whereas in the copy kept in the record of Sub-Registrar, it is found missing. PW-2 has stated that this date is in the handwriting of deceased and respondents have not disputed this fact further or have not examined any expert to establish that it was not written by the deceased. If the officials of Sub-Registrar had not got mentioned the date of execution of Will in their office copy also then that fact itself does not make the present Will in question as forged and fabricated on this account. No doubt that petitioner has not examined any one from office of Sub-Registrar but after comparing the original Will and certified copy, it can be said that Will Ex. PX simply cannot be rejected merely on the ground that there were lapses and negligence on the part of the officials of Sub-Registrar in not completing the particulars in his endorsement, not getting the date filled up in office copy etc. Petitioner should not be allowed to suffer for the lapses committed by govt. office upon whom he had no control. I am of the view that there was no forgery or fabrication of the Will in question and thus application under section 340 Cr.P.C. is liable to be dismissed. Even if certain lapses in registration process of the Will are considered, then its effect would be only upon the registration and not execution. Unregistered Will if is otherwise proved attaches same sanctity which can be given to registered Will being duly executed also.
(E) Non examination of other witnesses of the Will:- Law requires as per provisions of section 63 of Indian Succession Act that Will should be attested atleast by two witnesses but under section 68 of India Evidence Act, examination of one attesting witness in court is sufficient who must prove the due execution of the Will and compliance of conditions of section 63 of Indian Succession Act. Party relying upon the Will is also under obligation to show how and in which manner attesting witnesses of the Will attested and signed the same, even if only one attesting witness has stepped into the witness box.
No adverse inference can be taken against the petitioner merely on the ground that second attesting witness Sh. Amarjeet Singh is not examined. PW-1 has said in his statement that this witness who was living in front of his house now had shifted from there and he did not know where he had shifted and whether he is alive or not. Respondents have not alleged in their evidence 8 that this witness Sh. Amarjeet Singh is available or his whereabouts are even known to them. Even respondents have not taken any steps to call him as their own witness to establish the incorrectness of the Will. In such circumstances the version of PW-1 that he had tried to find out this witness but could not trace him cannot be disbelieved. Otherwise production of one attesting witness is a sufficient compliance of provisions of section 68 of Indian Evidence Act.
The status of Sh. Mahavir Singh and Sh. Vinod K. Sharma advocates cannot be held as of the attesting witnesses of the Will and in this regard some support also can be found from the decision of Supreme Court given in case Girja Datt vs. Gangotri Datt AIR 1955 Supreme Court 346 cited by the respondents. They had signed on the Will only for the purpose of getting it registered when it was brought in the office of Sub-Registrar after execution. These two advocates were not present at the time when the Will was actually executed by the deceased in his house in presence of PW-2 and Sh. Amarjeet Singh. Even if petitioner had not taken any steps to trace out the whereabouts of these two witnesses or did not examine them then that is not fatal to his case. Had they been examined they could have proved only manner of registration aspect but not execution as execution had already taken place much prior to the registration. In the present circumstances non examination of second attesting witness of the Will is not fatal. The circumstances of the cited case Dinesh Kumar vs. Khazan Singh AIR 1988 Delhi 273 were different wherein necessity arose to examine another witness also but here in the present case, due to non traceability of second attesting witness, petitioner was justified in not examining second attesting witness of the Will.
PW-2 in her statement has proved the fact how and in which manner Will was executed and in my view, the due execution of Will as per provision of section 63 of Indian Succession Act is established from her statement. The Will in question is not surrounded by any suspicious circumstances and whatever alleged suspicious circumstances have been shown by the respondents are fully removed and clarified by the petitioner. The case law cited by respondent no. 3 Apoline D' Souza vs. John D' Souza (2007) 7 SCC 225 and Rani Purnima Devi vs. Kumar Khagendra Narayan Dev 1961 (3) SCR 195 are not applicable in the present situation.
9(F) Mental and physical status of the deceased:- The court has to find out the mental status of the deceased at the time of execution of Will. PW-1 in his affidavit of statement specifically stated that at the time of execution of the Will, his father was of sound mind. Mere old age of deceased about 83 years at the time of execution of the Will itself is not sufficient to draw a presumption that due to old age, his mental soundness had been affected.
Law does not require that before execution of the Will, testator is required to obtain certificate of his own mental soundness from a doctor. Similarly there is no requirement that such type of certificate is required to be collected by the beneficiaries of the Will. Hence non-obtaining of any such certificate by petitioner before execution of the Will is not fatal to his case.
PW-1 admitted that deceased was operated upon for his eye ailment in May, 1980 but he had recovered from the same. PW-2 also admitted that deceased was operated twice on account of eye ailment. She also stated that in December, 96 deceased was being treated by an eye specialist doctor in Ajay Enclave. The suggestion given by the respondent in cross examination of PW-1 that his father had not recovered from that eye ailment and his retina had damaged is not supported by any medical record. Admission of PW-1 that his father complained of some troubles in the eyes on 31-12-96 after seven days of execution of Will itself is not sufficient to draw an inference that on the day of execution of Will, he had also that problem and he was not able to see properly. On the other hand, putting of various signatures and initials on the Will by deceased at proper places leads to the inference that the deceased was having no problem of any eye sight and he was able to see properly.
Deceased was also having problem of hernia for which he was never operated upon as per version of PW-1 and 2. How suffering from hernia problem has affected the mental soundness of the deceased is not explained by the respondents. Infact respondents have not brought on record any medical record of the deceased to show that he was suffering from such type of ailments that he had lost his senses or his memory had become weak or he was not able to distinguish between right and wrong. Respondent no. 2 in his cross examination had disclosed the name of doctors and hospitals from where deceased was allegedly getting treatments from time to time but he did not care to produce the same in court. R3W-3 also admitted that she had never taken 10 her father to any doctor or hospital. Admission of PW-1 that his father developed diabetic problem in year 1998 and on occasion collapsed is of no consequences as bad physical condition of the deceased occurred after about two years of the execution of the Will becomes irrelevant fact because court has to see the position of the deceased on the day when the Will was executed. PW- 1 has specifically stated that in December, 1996 when the Will was executed, his father was not getting any treatment from any doctor and this fact is not controverted by the respondents by producing any record to the contrary for which an adverse inference has to be taken against them. Suffering from some physical problems such as hernia, blood sugar, eye problem etc. does not amount to leading of unsound mind position. Hence it is held that deceased was not of unsound mind on the date of execution of Will.
R2W-1 further admitted in his cross examination that deceased used to deal with all his correspondences with govt. authorities himself and was maintaining his bank account. R3W-3 also admitted that deceased used to purchase UTI certificates and maintaining bank accounts which rule out the possibility of existence of his unsound mind position. Various letters as proved on record and admitted by respondents written by deceased from time to time to L&DO, Allahabad Bank and UTI after execution of Will also point out he was of sound mind and was dealing with his own affairs himself. In such situation it is held that deceased was mentally sound to execute the Will on 23-12-1996 and thus the plea of unsound mind position of the deceased and loss of memory is rejected.
(G) Execution of number of Wills, whether point out unsoundness of the deceased:- PW-1 knew about some Wills executed by his father prior to execution of Will Ex. PX though showed ignorance of Will dated 20-9-1994. In this Will, there is reference of four earlier Wills which the deceased had cancelled.
The first Will of the deceased is dated 20-11-1968 which is referred to in second Will dated 14-7-1988 but no copy of that Will is on record. In the second Will dated 14-7-1988 deceased had given everything to the petitioner only and excluded other legal heirs. In the third Will dated 28-9-1994, he gave 52% to respondent no. 3 and balance 42% to the children of the petitioner. In 11 the fourth Will dated 28-9-1995, deceased gave 48% share in his property to respondent no. 2 and remaining 52% to respondent no. 3. Under the fifth Will dated 7-10-96, deceased bequeathed his property in favour of Sh. Amrik Singh Dhall, (adopted son) alleged neithbourer and excluded his own children. The sixth and latest Will is dated 23-12-1996 Ex. PX as propounded by the petitioner.
In the Will Ex. PX, there is no reference of previous Will dated 28- 9-1994. From mere non referring of this Will dated 28-9-94 specifically in Ex. PX, it cannot be held that Will in question was got fabricated by the petitioner. When the deceased besides specifically describing his previous four Wills also said that any other Wills/testaments/codicils etc. shall also be treated as cancelled then the arguments advanced by the counsel for respondents that this Will dated 28-9-1994 still survives cannot be believed. Otherwise also last Will of the deceased prevails and other previous Wills are deemed to have been cancelled directly and impliedly.
Will of October, 1996 Ex. PW1/D-1 of the deceased is in favour of neighbourer Sh. Amrik Singh Dhall in whose house, deceased lived for about one week only as admitted by PW-1. Mere fact that PW-2 could not tell why deceased had executed this Will in his favour does not create a big suspicious circumstance to pin point that mental status of the deceased was not sound. On the other hand in the Will Ex. PX, deceased had given explanation how and under what circumstances this Will was got obtained from him by Sh. Amrik Singh and why he is canceling the same. Moreover by executing another Will in December, 1996 deceased had indirectly cancelled all previous Wills including in favour of Sh. Amrik Singh. From this fact alone it cannot be held that mental status of the deceased was not proper and sound as a person can change his Will number of times and there is no restriction over execution of number of Wills. Moreover when it is held above that mental condition of the deceased was proper and sound on the day when Will Ex. PX was executed then this ground of execution of various Will and canceling the same becomes immaterial and not sufficient to treat him as of unsound mind person.
PW-2 stated that deceased was not residing at 74 Gokhle Market but was residing with them in Krishna Nagar. However in the Will, deceased had described his address of 74, Gokhle Market which was infact a shop owned by 12 him. Simple from not giving actual residential address on the Will by deceased and describing address of his shop does not mean that he had lost his senses and was not in sound disposing mind. Otherwise also in the previous Wills which were also in favour of respondents, the same address was mentioned.
Respondents never took any action to get any Will probated in their favour till date. Even in their objections also no counter claim was filed to seek relief for themselves on any previous Will of the deceased. These facts lead to the inference that they are indirectly accepting that all previous Wills have been changed and cancelled by the deceased. As per law, only last Will prevails and there is no bar upon execution of number of Wills so alleged habit of changing Wills from time to time is not conclusive that deceased had become of unsound mind.
(H) Deceased had no faith upon petitioner and was not looked after by him:- PW-1 in his statement has alleged that his father was partly residing at 74, Gokhle Market and partly at his residence situated at WZ-7B, Krishna Nagar. He has given justification in this regard that due to shortage of accommodation, his father took another house on rent near his house but he used to visit him and stay at night with him. According to PW-2 deceased had also shifted on rented accommodation in Sant Nagar for about 6-8 months and in the house of Banti Watch Company for 2-3 months due to shortage of accommodation in her house but she used to provide food and clothing even there. R3W-3 admitted in her cross examination that she had met her father at the residence of petitioner before his death which point out that petitioner was taking care of him and deceased was living with him. Respondents have not brought any evidence on record to show that petitioner intentionally had kept his father away from the house and he was having sufficient accommodation. The living of deceased in different rented accommodation may be due to shortage of space but it is not established by the respondents that he lived separately to avoid harassment and maltreatment in the hands of the petitioner or his wife. Otherwise also from the statement of PW-2 it appears that deceased lived in the house of Banti Watch Co. after execution of Will just before his death and brought to house of petitioner as his health started deteriorated. This fact is not controverted by the respondent further in her cross 13 examination and infact admitted by respondent no. 3 as she met him last time in the house of the petitioner so it is held that deceased was living separately due to shortage of accommodation and not due to absence of any cordial relations with the petitioner.
Respondents have not brought on record any evidence that they were looking after the deceased during his old age. Deceased never resided in the house of the respondent no. 2. He lived in the house of respondent no.3 only for three weeks in October, 93 and August, 94 as stated by PW-1. R3W-3 also stated that her father lived for about 2 months with her in the months of August/September, 1994 and thereafter never lived with her. There was no wrong on the part of a father to live in the house of his married daughters for few days. The argument advanced on behalf of respondents that in Indian culture, father does not take even a water in house of his married daughter and his living there could arise only in very extreme situation has no universal application. Further more the living of few days in the house of daughter about two years prior to the execution of Will Ex. PX does not draw an inference that petitioner had thrown the deceased out from his house.
Much reliance has been put upon the letters of the deceased Ex. PW1/D-2 to D-15 and Ex. PW2/R1 to R6 by respondents to show that deceased was not happy with the petitioner and his family. Some of letters says that deceased was relying more upon respondent no. 3 then petitioner. Letter dated 16-6-1994 and 11-5-1994 speak about the dictatorship and troubles being created for him but it does not specify about the conduct of the petitioner or show that troubles were bring created by him. Deceased by letter dated 15- 6-1994 and another undated letter was even asking respondent no. 3 to bring even small articles such as stamp paper, gas lighter etc. for him. Deceased even kept his pass book and FDR with respondent no. 3 and wanted to do bank transactions through her. Deceased even wanted to consult some points with the respondent no. 3 as per his letters dated 9-7-1993 and 11-5-1994 which point out that he had some faith upon his daughter also. Respondents tried to show through these letters that deceased was not being taken care of by the petitioner and even was deprived off very small items. However all these letters are of year 1993-94. Whether the circumstances remained same after gap of 2 years even in the year 1996 when the Will Ex. PX was executed is not 14 explained. Some differences and confrontations of the deceased with petitioner two or more years prior to the date of execution of Will itself are not sufficient to show that love and affection of the deceased with the petitioner had not been restored and he still had not started taking care of him. The letters written to respondent no. 3 by the deceased does not disprove Will but shows somehow cordial relations with daughter. Asking respondent no. 3 to return his gas lighter and to bring stamp paper of Rs. 2/- for preparation of affidavit does not prima facie point out that deceased was totally deprived off his basic amenities etc. by the petitioner. Similarly asking respondent no. 3 to write letter to him at some another address does not mean that his relation with the petitioner had become very strained. He might want something to keep secret so asked respondent no. 3 to send letters at different address. Moreover different letters written by the deceased to L&DO, bank and UTI after execution of the Will proved on record by the petitioner further point out his faith upon the respondents had lost and he had made request to transfer his property and assets in favour of petitioner alone. Even if the deceased had some love and affection with his daughter i.e. respondent no. 3 at one time but at the time of execution of the Will Ex. PX he was much closer to the petitioner then any other child. Hence the conduct of the deceased in executing the Will in favour of petitioner alone in such circumstances cannot be held as unnatural and improbable.
PW-1 has denied the writing of his father on Mark-A and B which is a part of the diary of the deceased. This document is inadmissible in evidence as its original is not produced. It is also not established that the same is in handwriting of the deceased. Moreover the pages of this diary were not allowed to be taken on record and proved by the court vide order dated 3-12-2005 by rejecting the application for leading secondary evidence so these documents of respondents cannot be read in evidence. Accordingly, it is held that deceased was having much faith upon the petitioner who was looking after and taking care of him.
PW-1 also proved on record letters Ex. P-9 to 13 and General Power of Attorney dated 27-12-1996 Ex. P-14 which shows that deceased had faith upon the petitioner and had authorized him to perform various acts on his behalf in different offices and authorities. This General Power of Attorney was 15 bearing signatures of deceased atleast at two places as admitted by R3W-3. She though disputed signatures of deceased on letters Ex. P-11 to 13 but had not disputed the letters Ex. P-9 and 10. Deceased in his letter dated 12-1-1998 Ex. P-10 had appointed petitioner as his nominee in the record of L&DO.
The letter of deceased Ex. P-9 dated 21-4-1998 also point out that he had appointed petitioner as joint account holder of his bank account in Allahabad Bank, Tilak Nagar branch. PW-4 also proved that deceased got his saving bank account in Allahabad Bank, Tilak Nagar converted into joint account with the petitioner by submitting specific request letter Ex. PW4/2. The execution of Will as well as General Power of Attorney by the deceased in favour of petitioner further point out that he had much faith upon the petitioner then any other child so bequeath made in his favour in last Will cannot be said as unnatural conduct on his part.
Copies of few UTI certificates lying on the record i.e. certificate no. 49351169313 (200 units) also shows that petitioner was appointed as nominee. Mere fact that some of UTI certificates of the deceased was found in possession of respondent no. 3 who had deposited the same in court is not sufficient to show that deceased had also faith upon her especially when she is not able to tell how she came its possession and whether it were given to her by deceased himself and if so when, where and in whose presence it were handed over to her. R3W-3 alleged that she was appointed as nominee by her father in respect of UTI certificates and those were handed over to her. She admitted that 570 Units of UTI certificate are in her possession but the fact that it was given to her by her father proves incorrect as in this regard, deceased had written letter dated 4-5-1998 Ex. P-11 to UTI about its loss. In the letter Ex. P- 12 dated 8-6-1998, deceased had cancelled the nomination of UTI certificates in favour of respondent no. 3 whereas in another letter Ex. P-13 dated 19-6- 1998, deceased had asked UTI again to cancel his earlier nomination in favour of his daughter and to restore nomination of petitioner besides requesting to make payment of those certificates to him. Even if respondent no. 3 is getting some benefits from these certificates illegally after cancellation of her nomination then it has to be held that she was taking these benefits unauthorizedly.
16(I) Reliability of attesting witness and effect of section 67 of Indian Succession Act:- Will in question was executed at residence of petitioner and was attested by wife of petitioner i.e. PW-2 and Sh. Amarjeet Singh, friend of deceased. Sh. Amarjeet Singh was residing in front of the house. Normally Will is got attested from the known persons or from person upon whom testator had some faith and trust. The action of deceased in getting the Will attested from his friend and neighbourer cannot be held as unnatural conduct. Mere fact that petitioner and PW-2 used to attend ceremonies and functions in his house itself is not a ground to presume that he was an interested witness and had conspired in preparing the alleged forged Will.
Section 67 of Indian Succession Act makes the bequeath void in respect of a particular beneficiary if his or her spouse had attested the Will. Petitioner is the sole beneficiary of the Will whereas his wife is one of the attesting witnesses. However keeping in view the provisions of section 57 and schedule-III of Indian Succession Act if are read along with section 67 of the Act, I am of the view that section 67 of Indian Succession Act is not applicable to Hindus which includes Sikhs. Accordingly the bar of section 67 of the Act is not applicable in the present facts and circumstances and there is no illegality in getting the Will attested by deceased from spouse of the beneficiary.
(J) Reasons available to exclude respondent no. 2 and 3:- Respondent no. 2 admitted in his statement that he was living separately from his father since year 1960. He rarely used to meet his father and never met him in the house of petitioner. He in the cross examination of PW-1 has not disputed the version that in respect of his share in the shop, a dispute arose and the matter was referred to arbitrator who passed the award Ex. P-3 on 1-10-1963 and that award was made rule of the court on his petition subsequently after recording statements of the parties Ex. P-4 by the order of the court Ex. P-5. Under that award, respondent no. 2 received sum of Rs. 4500/- through different cheques as his share in the shop vide receipt Ex. P-6. However in his statement while appearing as witness R2W-1, he denied all such documents. His deposition in this regard cannot be accepted as correct keeping in view the certified copies of the record produced by the petitioner. The denial of his own petition for making award rule of court clearly point out that respondent no. 2 was telling lie in the 17 court and is an unreliable witness thus his deposition regarding his defence cannot be believed. When respondent no. 2 had already received his share in the shop in question by raising dispute even in the court then the deceased had justification to exclude him from benefit of his estate.
PW-1 has also stated that respondent no. 3 also received money and articles vide receipt Ex. P-8 dated 25-4-1985. This receipt is not disputed by respondent no. 3 as she admitted her signatures on it during her cross examination as well as fact that cheques and pay orders mentioned in this receipt were got encashed by her. Her suggestion given to PW-1 that it only shows the expenses of her marriage is contradictory to the contents of Ex. P-8 especially of page 3 which point out that she received the amount also towards her share and not simply in connection with her marriage. Thus the deceased had justification to exclude both the respondents from the benefit of his estate.
Respondent no. 3 tried to show that she was financially helping her father by making payment of Rs. 1000/- per month through cheques whereas according to petitioner, this payment was towards the return of the loan amount of Rs. 40,000/-. Respondent no. 3 relied upon the bank record Ex. R3W-2/A produced by R3W-2. This bank certificate of SBI, Central Secretariats branch only shows that 11 cheques of Rs. 1000/- and one cheque of Rs. 800/- debited from the account of respondent no. 3 and credited in account of deceased from December, 1994 to December, 1995. However in her cross examination she admitted that she was given some money by her father. The version of respondent no. 3 that she used to financially help her father by making payment of Rs. 1000/- through cheques appears to be an absurd and unreasonable because no explanation has come on record from her side why she had chosen to help him through account payee cheques instead of cash. She is also not able to tell till what time she helped her father financially. The making of payment of Rs. 1000/- per month through cheques to the deceased appears to be against the return of the loan amount. Even if for the sake of arguments it is presumed that she was financially helping her father itself do not make out a ground that she would get a right to claim share in the property of the deceased. Otherwise also this certificate further point out that respondent no. 3 had stopped financially helping the deceased after December, 1995. No evidence is brought on record that she ever helped her father 18 thereafter till he expired.
The story of respondents as put to PW-1 and 2 in their cross examination that they used to beat the deceased with the shoes, hurling abuses to him, badly maltreating him, confining him in the house, not allowing to go outside or to meet or talk anyone or were not taking care of him is nowhere found in the objections of respondents. The version of respondents that deceased was confined in the house by the petitioner and was not allowed to go out and meet anyone itself is falsified from the admission of R3W-3 who stated that she used to meet her father in a park several times where he used to come alone in a rickshaw. The going alone out of house to meet respondent no. 3 further draw inference of sound physical health of the deceased and also rule out the possibility of confinement. The putting of suggestions contrary and beyond pleadings cannot be relied upon at all. Otherwise also these suggestions have no justification and base in absence of showing of any particular and specific instance. These suggestions have been denied by PW-1 and 2 and accordingly cannot be relied upon. Respondents have failed to show from any evidence that relations of the deceased with the petitioner were not cordial at the time of execution of Will Ex. PX. Deceased thus had reasons in excluding the respondents from his estate and he had mentioned the same even in his Will. The case law cited by respondent no. 3 Ram Piari vs. Bhagwant AIR 1990 Supreme Court 1742 is distinguishable from the facts of the present case.
(K) Coercion and undue influence exercised upon deceased:- Petitioner PW- 1 admitted in his statement that he was present at the time of signing and registration of the Will who is the sole beneficiary under it. However mere presence of beneficiary of the Will at the time of execution or registration of the Will itself is not sufficient to draw presumption that he had exercised coercion or used undue influence to get the Will executed in his favour. PW-1 also specifically denied having put any pressure upon his father in executing the Will. It cannot be said that petitioner had taken active part in execution of the Will.
Deceased knew the English language as stated by PW-2 and had signed on the Will in English. Absence of knowledge on the part of PW-2 19 whether he was matriculate or M.A. is irrelevant fact. R3W-3 admitted in her statement that deceased was an educated person. The possibility that he could not understand the contents of the Will thus is ruled out in such situation.
Post care dated 23-8-1994 relied upon by the respondent no. 3 also says that deceased used to contact lawyers and thus possibility of getting Will in question drafted from some advocate by the deceased himself is there. There is no evidence on record to show that petitioner had played prominent part in getting the Will prepared and executed. His mere presence at the time of execution of Will and taking the deceased to office of Sub-Registrar itself is not a suspicious circumstance to discard the Will in question. The decision of Supreme Court in case Kartar Kaur vs. Mikho 1997 RLR 103 and of Madras High Court Govindaswami Naidu vs. Kannammal MLJR page 747 as cited by respondent no. 3 are distinguishable from the facts and circumstances of the present case.
(L) No subsequent change of Will by deceased till his death:- Will in question was executed on 23-12-1996 whereas deceased died almost three years thereafter on 21-12-99. For about 3 years, deceased did not took any steps to get his Will changed or revoked or to execute the fresh Will so in that situation Will in question can be relied upon and cannot be looked into with suspicion. In this regard reliance can be placed upon case law Savithri vs. Karthyayani Amma (2007) 11 SCC 621.
(M) Contradictions in the statement of witnesses:- PW-1 stated in his cross examination that his father was not writing any diary whereas PW-2 stated contradictory to this version. PW-1 showed ignorance about the existence of Will of 1994 whereas PW-2 stated that they know about all Wills of the deceased. PW-1 was present at the time of execution of the Will whereas PW-2 alleged that except testator, herself and another attesting witness, no other person was present at that time. These contradictions in the statement of PW-1 and 2 are in my view are minor in nature are not sufficient to reject their testimony or to create doubt about their truthfulness especially when the statements were recorded in the court after several years and during passage of time, memory fades.
20(N) Absence of knowledge of some facts on the part of petitioner:- PW-1 and 2 had no knowledge from whom and when deceased got the Will typed and which of the advocate was consulted before getting Will prepared. The absence of knowledge of these facts itself is not sufficient to reject the testimonies of PW-1 and 2 which otherwise is convincing and reliable when they specifically stated that deceased himself had got prepared this Will and brought it in the house. These facts also disprove the active participation of the petitioner in getting the Will procured from the deceased in his favour.
The evidence of respondent no. 3 led in her evidence on number of aspects is beyond pleadings and those facts deposed are liable to be excluded from her statement. From the statement of PW-2, it has been established that deceased had signed the Will in her presence and in presence of another witness voluntarily after understanding its contents and they also signed on it as attesting witnesses in his presence. Deposition of PW-2 in her cross examination that deceased himself had read the Will at the time of signing and told the witnesses in whose favour it was being executed has not been further challenged by the respondents. The reasons for excluding respondents no. 2 and 3 can be found in the Will itself. The Will is not surrounded by any suspicious circumstance to make it invalid and unenforceable. The compliance of provisions of section 63 of Indian Succession Act regarding due execution of the Will is proved so accordingly, it is held that the Will Ex. PX executed by Sh. Inder Singh Arora on 23-12-1996 is proved as legal, valid and genuinely executed. It is his last testament and thus has to be enforced. This issue is decided against the respondents and in favour of the petitioner.
Issue no. 2 (Relief):-
In view of above discussions, petition is hereby allowed. Letter of Administration is granted on basis of Will Ex. PX jointly in favour of all the LR's of deceased petitioner in respect of properties of the deceased subject to their furnishing requisite court fee, administration bond with one surety bond. Valuation of the UTI certificates in question as on the date of filing of the petition shall be called from Unit Trust of India at the time of completion of necessary formalities. It is hereby clarified that by this grant, question of right, title, share and ownership of the deceased qua the properties in question is not 21 decided. Application of respondent no. 3 under section 340 Cr.P.C. is dismissed. LRs of the petitioner are entitled to receive the amount deposited by the tenants of the property of the deceased from court. The original UTI certificates of the deceased deposited in court by respondent no. 3 be handed over to them. The benefit accrued on basis of those certificates which were received by the respondent no. 3 is ordered to be returned to the LR's of the deceased petitioner. Parties are directed to bear their own costs and file be consigned to the Record Room.
(ASHWANI SARPAL)
Dt.- 8-2-2010 ADDITIONAL DISTRICT JUDGE
DELHI.