Delhi District Court
Sh. Jugal Kishore vs State on 31 May, 2014
Jugal Kishore v State & Ors. PC 19/06/05
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
PC 19/06/05
1. Sh. Jugal Kishore,
S/o Late Sh Roshan Lal Puri,
2. Smt Ved Kumari,
W/o Sh. Jugal Kishore,
Both R/o B2/31, Janak Puri,
New Delhi. ....... Petitioners
Versus
1. State
2. Sh D.P Puri, S/o Late Sh Roshan Lal Puri,
R/o B1/343, Janak Puri, New Delhi.
3. Smt. Nirmal Chopra (since deceased),
D/o Late Sh. Roshan Lal Puri,
now represented through legal heirs:
3A. Sh Raj Kumar Chopra (Husband)
3B. Sh Ajay Chopra (Son)
3C. Sh Vijay Chopra (Son)
All r/o ND71, Bikrampura, Jalandhar City, Punjab.
3D. Smt. Indu Chopra @ Inddu Bajaj, Married daughter
of late Smt. Nirmal Chopra, R/o House No. 120, Ward no. 11,
Near Janta Hospital Bhudlada, District Mansa, Punjab.
Result: Petition allowed. Page 1 of 100
Jugal Kishore v State & Ors. PC 19/06/05
3E. Smt Rita Chopra @ Rita Loomba, Married daughter
of Late Smt. Nirmal Chopra, R/o H. No. 608/1, Maler Kotla
House, Opposite Old Dayanand Medical College, Civil Lines,
Ludhiana, Punjab.
4. Sh Kamal Kishore Puri (Since deceased),
S/o Late Sh Roshan Lal Puri and now represented
by the following legal heirs:
4A. Smt. Neelam Madan, married daughter of Late
Sh Kamal Kishore Puri, R/o 90C, Vikas Puri, New Delhi.
4B. Smt. Manju Singh, married daughter of Late
Sh. Kamal Kishore Puri, R/o 373, Sector9, R.K Puram,
New Delhi.
4C. Smt. Monika Takkar, married daughter of Late
Sh Kamal Kishore Puri, R/o H.No. 45B, Block B,
Kalkaji, New Delhi.
5. Sh Naval Kishore Puri (Since deceased), S/o Late
Sh Roshan Lal Puri and now represented by
the following legal heirs:
5A. Smt Prem Puri (wife/widow),
5B. Sh Nikhil Puri (Son)
Both R/o D2, Goel Plaza, Opp. Goel Park,
Judges Bunglow Road, Ahmedabad, Gujrat.
5C. Smt Nisha (Daughter)
Result: Petition allowed. Page 2 of 100
Jugal Kishore v State & Ors. PC 19/06/05
6. Smt.Urmila Dhir, D/o Late Sh Roshan Lal Puri,
R/o Quarter No. 78, Street78, Simjuri Chitranjan,
West Bengal.
7. Smt. Shashi Dhawan (Since deceased), D/o Late Sh
Roshan Lal Puri and now represented by the following
legal heirs:
7A. Sh Gulshan Dhawan (Husband)
7B. Sh Devinder Dhawan (Son)
Both R/o H. No. 2734B, Main 40 feet Road, Near Naag
Mandir, Jain Nagar, Terthankar Nagar, Delhi110081.
7C. Smt. Rama Dua (Daughter)
R/o AC43, Tagore Garden, New Delhi.
8. Sh. Naresh Kumar Puri,
R/o H.No. 2472, New Qrs., Airport,
Dumdum, Calcutta52. ......Respondents.
Unique case I.D No. : 02401C0084852005
Date of Institution : 07.07.2005.
Date of Reserving Judgment : 21.05.2014.
Date of Judgment : 31.05.2014.
Result: Petition allowed. Page 3 of 100
Jugal Kishore v State & Ors. PC 19/06/05
JUDGMENT
Petition under Section 276 of Indian Succession Act for grant of Probate/letter of Administration.
1. The petitioners namely Sh Jugal Kishore and his wife Smt. Ved Kumari are seeking grant of Probate/letter of Administration with Will annexed under Section 276 of Indian Succession Act (herein after called as 'the Act') in respect of estate of the deceased Sh Roshan Lal Puri. The first petitioner is the son of the deceased Sh Roshan Lal Puri while the second petitioner is the daughter in law who claim to be the legatees and beneficiaries of the Will dated 1.12.1994 (ExP1) executed by the deceased Sh Roshan Lal Puri as its Testator having permanent place of residence at B2/31, Janak Puri, New Delhi58. He died on 16.12.1994. Prior to it, on 1.12.1994 he executed a Will ExP1 in the presence of witnesses named therein and the same was duly registered at serial no. 50577 in Addl. Book No. 3, Volume No. 2379 at pages 9798 on 1.12.1994 itself. He bequeathed his properties i.e amount of Rs.13025.71paise in saving bank account no. 1642, Punjab National Bank, Janak Puri, New Delhi, built up property no. B2/31, area Result: Petition allowed. Page 4 of 100 Jugal Kishore v State & Ors. PC 19/06/05 measuring 270 sq. mtr. comprising of single storey situated at Janak Puri, New Delhi in favour of petitioners. The petition has been verified by one of the attesting witness namely Sh P.S Varshney. 1.1The State has been arrayed as the first respondent. His other near relations were arrayed as respondents no. 2 to 8 as per Annexure B. The second respondent Sh. D.P Puri is stated to be the son of deceased Sh Roshan Lal Puri. The third respondent Smt. Nirmal Chopra is stated to be the daughter of deceased. She died on 3.1.2011. Her legal representatives Sh Raj Kumar Chopra (Husband); Sh Ajay Chopra (Son); Sh Vijay Chopra (Son); Mrs. Indu Chopra @ Indu Bajaj (married daughter) and Mrs. Rita Chopra @ Rita Loomba (married daughter) were brought on record on 22.3.2011 and are now respondents no. 3A to 3E.
1.2 It so happened that the petitioners filed an application under Order 6 Rule 17 read with Section 151 CPC dated 9.6.05 whereby they sought amendment to Annexure B i.e list of near relations of deceased. It is in the application that Sh Kamal Kishore Puri, son of deceased who was already respondent no. 4 was dead at the time of filing of the petition and his wife had also died by that time. The name of his daughter Ms. Result: Petition allowed. Page 5 of 100 Jugal Kishore v State & Ors. PC 19/06/05 Monika Puri, sole surviver and the only legal heir of late Sh Kamal Kishore Puri was not arrayed in Annexure B due to inadvertence. Subsequently, the petitioners filed another application under Order 6 Rule 17 read with Section 151 CPC seeking amendment to the amendment application dated 9.6.05. In the lattar application, it was prayed that infact, there are two more LRs of deceased Sh Kamal Kishore Puri namely Smt. Neelam Madan and Smt. Manju Singh. Both the applications were allowed by the order of the Court dt. 2.7.07. Respondents no. 4B and 4C were proceeded exparte on 7.1.2010. 1.3 Sh Naval Kishore Puri, son of deceased Sh Roshan Lal Puri was arrayed as fifth respondent. He also died during the course of proceedings. His LRs namely Smt Prem Puri (wife); Sh Nikhil Puri (Son) and Smt. Nisha (daughter) were brought on record vide order dated 5.10.2012.
1.4 Smt. Urmila Dhir, daughter of deceased Sh Roshan Lal Puri is the sixth respondent while Smt. Shashi Dhawan, daughter of deceased was arrayed as respondent no. 7. She also died during the course of proceedings on 4.2.2013 and her legal heirs Sh. Gulshan Dhawan Result: Petition allowed. Page 6 of 100 Jugal Kishore v State & Ors. PC 19/06/05 (Husband); Sh Devinder Dhawan (Son) and Smt Rama Dua (Daughter) were brought on record vide order dated 16.7.2013 and were impleaded as respondents no. 7A to 7C.
1.5 Sh Naresh Kumar Puri, son of deceased Sh Roshan Lal Puri is the eight respondent.
2. On receipt of petition, notice was issued to the Collector and near relations of the deceased. Citation to general public was got published in newspaper 'National Herald'. The respondents no. 2, 3, 7 & 8 appeared on 10.7.2005. As pointed out by me above, the respondent no. 4 had already died. Respondent no. 5 appeared through counsel on 25.4.2005. They all filed their objections and on 18.7.2005, Ld. Predecessor Court settled the following issues:
1. Whether the present petition is barred by limitation and if so, its effect ? OPR.
2. Whether the Will dated 1.12.1994 propounded by the petitioners in this case is the last and genuine Will of late Sh. Roshan Lal Puri and if so, was it validly executed by him while in sound disposing mind ? OPP.
Result: Petition allowed. Page 7 of 100
Jugal Kishore v State & Ors. PC 19/06/05 3. Relief.
3. The matter was listed for petitioners' evidence. The original Will of Sh Roshan Lal Puri was placed on record pursuant to order on petitioners' application under Order 7 Rule 14 CPC vide order dated 30.11.05. As stated earlier, in between the amendment applications were filed and allowed. The amended schedule in regard to respondent no. 4 was taken on record. Notices were accordingly issued. The respondents 4A to 4C were served through publication in newspaper 'National Herald' dated 9.10.06. Only respondent 4B and 4C appeared and filed their objections which were formally taken on record pursuant to order of the Court dated 2.7.07. Respondents no. 4B and 4C were proceeded exparte vide order dated 7.1.2010.
4. Remaining objectors also appeared and filed their objections. There are two sets of objections.
4.1One set has been filed by respondents no. 2, 3, 5, 6, 7 & 8 while the other has been filed by respondents no. 4B and 4C. 4.2The first set of objectors have taken preliminary objections to the effect that the Will dated 1.12.1994 is forged, fabricated and never Result: Petition allowed. Page 8 of 100 Jugal Kishore v State & Ors. PC 19/06/05 executed by the deceased Sh Roshan Lal Puri who in any case was aged 83 years on the date of execution of Will and was in a precarious condition since November 1994. He was unable to move, see, hear and was not at all in a position to understand the things from the first week of November, 1994 till his death. He is said to be virtually unconscious in the last week of November 1994 onwards till his death. It is further claimed that soon after the death of Sh Roshan Lal Puri, all the brothers and sisters had agreed to partition the property bequeathed and even the petitioners had consented to the same without uttering a single word regarding the Will ExP1. It is stated that after lapse of 10 years only, the alleged Will is being propounded. It is claimed that the deceased had love and affection for his children who all were serving him and looking after him through his life and thus, there was no occasion for him to debar rest of his LRs to their exclusion. It is submitted that both the attesting witnesses Sh P.S Varshney and Sh. Manjit Singh were junior to the first petitioner and all working together in P & T Department. It is claimed that there had been exchange of number of letters between the parties to this petition showing that Will is forged and fabricated. It is stated that even in the DDA, all the relations had clearly stated that there Result: Petition allowed. Page 9 of 100 Jugal Kishore v State & Ors. PC 19/06/05 is no Will of the deceased. It is further claimed that petition is barred by time and not maintainable. On merits, description of relationship of the parties to the present petition with deceased Roshan Lal Puri is not denied. The factum of date and place of his death is also not in dispute.
It is further claimed that the deceased being unconscious could not have appeared before the Sub Registrar for registration of Will. It is claimed that Sub Registrar was brought to the home of deceased by the petitioners for getting his documents registered and Sh Roshan Lal Puri was not in a position to even say yes or not to a particular fact. It is further claimed that Annexure A does not contain correct market value of the property in dispute which is said to be about Rs.1.5 crores on the date of petition. The territorial jurisdiction of this Court is not denied. It is prayed that petition be dismissed with costs.
5. The petitioners filed reply to the objections filed by the first set of objectors. They denied that deceased Sh Roshan Lal Puri was incapacitated at all in the manner alleged. It is denied that Will in question was forged or fabricated. It is denied that they had ever agreed to partition of the subject property. It is reiterated that Sh Roshan Lal Puri himself was an advocate and was aware of law. The Will was Result: Petition allowed. Page 10 of 100 Jugal Kishore v State & Ors. PC 19/06/05 drafted by him and he executed the Will in the presence of witnesses at the office of concerned Sub Registrar. The deceased is said to be hale and hearty at the time of execution of Will and was possessing a sound disposing state of mind, in good health and able to move properly from one place to another. He is said to be mentally and physically fit person at the time of execution/registration of Will. It is further stated that after returning from cremation ground, the petitioner showed the Will to all the objectors who accepted the same as correct after going through its contents. It is claimed that since the Will was actually shown in the above manner that is why the objectors have not filed any case regarding partition. It is further replied that Sh Rajesh Puri, son of respondent no. 2 Sh D.P Puri, is a tenant in respect of one room in the subject property at monthly rent of Rs.600/ excluding electricity and house tax. The room was let out to him by late Sh Roshan Lal Puri and after his death, Sh Rajesh Puri, after seeing the Will in question started making payment of rent to the petitioners which is paid upto March 2004. It is admitted that the attesting witnesses Sh P.S Varshney and Sh Manjeet Singh are working in P&T department. It is further submitted that both the petitioners looked after the deceased and none of the objectors ever tried Result: Petition allowed. Page 11 of 100 Jugal Kishore v State & Ors. PC 19/06/05 to see and look after the deceased at any time since 1988. The letters purported to be written between the parties are stated to be forged and fabricated by the objectors with malafide intention. 5.1 As said earlier, the respondents no. 4A to 4C were substituted later. Only respondents no. 4B and 4C filed their objections to the probate petition to which the reply was also filed. However, the said respondents also moved an application under Order 6 Rule 17 CPC for adding clause VIII to the preliminary objections taken by them in the objections. The said application was allowed on 10.10.07. The amended objections were taken on record. No reply to the amended objections was filed. The said respondents claimed that the petition is not maintainable as the family members of deceased/respondents no. 4B and 4C were not disclosed. It is claimed that mental and physical condition of the deceased at the time of execution of the Will has not been disclosed in the alleged Will by the petitioners. It is said to be concealed because since November 1994, the deceased has been mentally and physically wrecked from which he could not recover till his death. It is submitted that the deceased, who was a chain smoker through out his life was a chronic Asthma patient and had contacted TB since middle of 1990. It is Result: Petition allowed. Page 12 of 100 Jugal Kishore v State & Ors. PC 19/06/05 stated that in November 1994, the deceased suffered a Paralytic Attack paralysing his right side and right hand. It is claimed that the deceased had become completely incapable to prepare or get prepared and execute the alleged Will or to understand about its contents. It is submitted that the second respondent Sh D.P Puri was attending him religiously. It is claimed that deceased was availing benefit of GGHS facility as per entitlement of first petitioner. It is submitted that all sons of deceased are educated and well placed. Thus question of dis entitling them does not arise. It is further claimed that petition is barred by limitation as filed 10 years after the death of deceased on 16.12.94. It is denied that deceased was a practicing advocate. It is further submitted that the respondents had been requesting the petitioners for partitioning the property but the petitioners, without disclosing about the Will, kept on avoiding the partition. It is claimed that deceased was not possessing sound disposing power at the time of execution of Will and was virtually a captive in the hands of the petitioners. On merits also, the claim has been denied. It is added that these respondents were told by their deceased father Sh. Kamal Kishore Puri that after the death of their grand mother in 1988, their grand father i.e deceased Sh Roshan Lal Puri had executed the Will Result: Petition allowed. Page 13 of 100 Jugal Kishore v State & Ors. PC 19/06/05 giving right of residence to his daughters during their life time and equal ownership to his sons. It is further claimed that their grand father entrusted the Will to their father Sh Kamal Kishore Puri for safe custody. It is submitted that the petitioner had no intention to probate the Will during the life time of their sisters because they had knowledge about their life interest in the property in question and also to avoid any complication. It is submitted that their father Sh Kamal Kishore was residing alone at Madangir, New Delhi. His wife had predeceased him and the answering respondents had been married. It is submitted that after the death of their father, his belongings remained unattended resulting into the Will getting misplaced and unavailable. It is claimed that the petitioners filed this petition after coming to know that the said Will has been misplaced.
5.2As said earlier, the petitioners filed reply to the unamended objections of respondents no. 4B and 4C. The contents of the same are a total denial of the contents where ever required specifically. It is submitted that the deceased was not a chain smoker & never contacted T.B. It is denied that in last week of November 1994, the deceased suffered from Paralytic attack. It is submitted that deceased died natural death due to Result: Petition allowed. Page 14 of 100 Jugal Kishore v State & Ors. PC 19/06/05 old age. He executed the Will with his free mind in sound disposing state of mind and without any pressure from any corner. It is denied that the deceased was ever virtually wrecked as alleged. It is denied that Sh D. P Puri(Respondent no. 2) provided treatment to the deceased. It is in the reply that deceased had also got prepared the draft of his Will (ExPW1/A) which was corrected by him in his own hand writing and thereafter a final draft of the Will ExP1 was got prepared, executed and registered. It is further submitted that the deceased had several fixed deposits accounts with Punjab National Bank. On 15.11.94, he submitted a letter of request (ExPW6/C) to Manager, Punjab National Bank, Janak Puri for adding the name of his son in FD accounts as nominee of the deceased. The request was allowed by the bank. It is submitted that this fact shows that deceased was in sound disposing mind and wanted to avoid all disputes in his family. It is further denied that deceased had equal affection for his children. It is pointed out that the eldest son Sh Kamal Kishore Puri got himself married in 1964 against the wishes of the deceased and his wife and also started living independently and separately from his parents. Thus, Sh Roshan Lal Puri disowned him. He never visited his parents and did not even attend the funeral as well Result: Petition allowed. Page 15 of 100 Jugal Kishore v State & Ors. PC 19/06/05 as last rites of his mother who died in the year 1988 and even of the deceased himself who died in 1994. Second respondent Sh D. P Puri is said to have left his father in the year 1988 after the death of his mother and started living separately in house no. B1/343, Janak Puri, New Delhi. After 1988, he never cared or looked after the deceased. It is further stated that Sh Naresh Puri/respondent no. 8 also started living separately and independently from the deceased after his marriage in 1976. He rarely visited the deceased. It is further submitted that late Sh Naval Kishore Puri (now represented by respondents no. 5A to 5C) also started living separately and independently from deceased after his marriage in the year 1976 and never looked after the deceased. Their married daughters namely late Smt. Nirmal Chopra (now represented by respondents no. 3A to 3C) and late Smt. Shashi Dhawan (now represented through respondents no. 7A to 7C) were settled in their families. It is submitted that even the widowed daughter of deceased namely Smt. Urmil Dhir/respondent no. 6 is also busy in her family. It is claimed that it is the respondent and his family members who provided the basic necessities and comfort of life to the deceased. He was very much pleased in services rendered by them and thus bequeathed his Result: Petition allowed. Page 16 of 100 Jugal Kishore v State & Ors. PC 19/06/05 movable and immovable properties to them and also nominated the first petitioner as his nominee in his fixed deposit accounts and other credits with PNB, Janak Puri, New Delhi. Since the other sons and daughters neglected the deceased Sh Roshan Lal Puri, he disinherited them from his property. On limitation, it is submitted that the attesting witnesses Sh P.S Varshney and Sh Manjeet Singh had told the first petitioner after Chautha ceremony of deceased about deceased having executed his Will dt. 1.12.94 which was then in custody of the third witness Sh C.M. Bhagchandani, advocate. The first petitioner then approached Sh Bhagchandani, advocate who confirmed the above fact and also delivered the original Will to the first petitioner. The petitioner then immediately disclosed to all the objectors except Sh Kamal Kishore Puri about the aforesaid Will and they agreed to abide by the same. It is further stated that all the objectors except Kamal Kishore Puri had agreed to give their no objection so that property could be transferred in the name of petitioners but for one reason or the other they did not actually give their no objections resulting into further time being lapsed. Finally, the petitioners applied for mutation of the said property in November 2003 to the DDA on the basis of the Will in question. It Result: Petition allowed. Page 17 of 100 Jugal Kishore v State & Ors. PC 19/06/05 could not be mutated as Sh D.P Puri and Smt. Nirmal Chopra submitted their objections. The petitioners were thus compelled to file the present petition. On merits, reply to the preliminary objections has been amplified. It is further submitted that the deceased had not executed any Will after the death of his wife in the year 1988 except the Will dated 1.12.94. They denied that the daughters were given any right of residence by virtue of alleged Will or that the properties were given to all the sons equally. Presence of any other will has been denied. It is further submitted that petitioners never kept the Will in question as a secret. It is further submitted that the question of any other Will of the deceased getting misplaced does not arise for want of any such execution.
6. It has already been pointed out that evidence in the present case had started and was being led soon after the settlement of issues. Objectors no. 4B and 4C substituted in place of already deceased Sh Kamal Kishore Puri not only placed on record their objections but also joined the remaining objectors in cross examining the witnesses of the petitioners. Total six witnesses have been examined by the petitioners in their evidence.
Result: Petition allowed. Page 18 of 100
Jugal Kishore v State & Ors. PC 19/06/05 6.1Sh Yashpal, LDC from the office of Sub Registrar, Janak Puri is PW
1. He produced the record regarding registration of Will ExP1. He identified the original Will ExP1.
6.2. Sh Jugal Kishore, first petitioner examined himself as PW 2 and filed his affidavit in evidence which is ExPW2/A. He was later on permitted vide order dated 10.10.07 to file his own additional affidavit in his evidence which is ExPW2/B. As PW 2, he has deposed in accordance of the pleadings and has relied on the Will ExP1 and the death certificate of deceased Sh Roshan Lal Puri ExPW1/2. By way of additional affidavit, he deposed that deceased had also got prepared a draft of his Will duly corrected by him in his own hand writing. Same is ExPW1/A. He also deposed that the deceased got his name added as his nominee in his FDRs for which he wrote a letter dated 15.11.1994 to his banker which is ExPW1/B. The copies of the applications filed by him with the bank in this context are Mark A and Mark A2. The bank acknowledged the receipt of application for nomination which are ExPW1/C & ExPW1/D respectively. PW 2 also deposed that he was paying his salary to the deceased and that he was meeting the household Result: Petition allowed. Page 19 of 100 Jugal Kishore v State & Ors. PC 19/06/05 expenses and maintaining the details. One such detail for the month of December, 1994 in the hand writing of deceased is ExPW1/E. It is further deposed that before filing the present petition, petitioners applied for mutation of the subject property vide copy of application form ExPW1/F. The DDA declined the mutation on account of objections on 21.7.2004 vide letter ExPW1/G. The details of FDRs are provided in the additional affidavit and the photocopies of the FDRs showing PW 2 as nominee are collectively Mark A3. It is also in the affidavit that on the death of Sh Roshan Lal Puri, the amount in the FDRs were credited to the account of PW 2. The attested photocopies of said FDRs are ExPW1/H collectively. The witness was cross examined at length. 6.3. Sh Manjeet Singh, attesting witness to the Will ExP1 appeared as PW 3 and filed his affidavit in evidence ExPW3/A. He identified his own signatures as well as signatures of the testator and the remaining attesting witnesses on the original Will. He was also cross examined in detail.
6.4. Sh P.S Varshney as PW 3 filed his affidavit in evidence ExPW3/A. He is also an attesting witness to the Will ExP1. He also identified the Result: Petition allowed. Page 20 of 100 Jugal Kishore v State & Ors. PC 19/06/05 signature of the testator and the remaining witnesses including him. He was also cross examined in detail.
6.5. The second petitioner Smt Ved Kumari examined herself as PW5. Her affidavit in evidence is ExPW5/A. She deposed in accordance with the pleadings. She was also cross examined in detail.
6.6. Lastly, the petitioners examined Sh Satish Kumar Talwar, Deputy Manager, PNB, Janak Puri branch, New Delhi as PW 6. He produced the account opening and nomination form and proved copy of nomination form filled by Sh Roshan Lal Puri dated 17.11.94 as ExPW6/B which was made in favour of Sh Jugal Kishore. He also proved ExPW6/C and ExPW6/D being issued by his bank as acknowledgment of nomination form. He produced copy of account opening form in the name of Sh Jugal Kishore as ExPW6/E. The copy of account opening form in the name of Sh Roshan Lal Puri and his wife Smt. Leela Wati is ExPW6/F. He deposed that after his death, accounts were transferred in the name of Sh Jugal Kishore. In this context, he proved copy of the application filed by Sh Jugal Kishore as ExPW6/G. He proved copy of nomination filled by Sh Roshan Lal Puri dated Result: Petition allowed. Page 21 of 100 Jugal Kishore v State & Ors. PC 19/06/05 17.11.94 as ExPW6/H. He also proved certified copy of ledger of account no. 9182 as ExPW6/I. He also produced certified copy of ledger account no. 2374 in the name of Sh Jugal Kishore as ExPW6/J. This witness was also cross examined.
6.7. No other witness(s) was/were examined by the petitioners.
7. The first set of objectors examined the second respondent Sh. D.P Puri as RW 2. His chief examination refers to him as RW1 but cross as RW2. Infact, it was deferred and later examined as RW2. His affidavit in evidence is ExRW1/A. He deposed as per defence and also testified that he was taking care of all medical needs of deceased Sh Roshan Lal Puri. The X ray reports are ExRW1/1. His sputum examination report is ExRW1/2, blood examination report is ExRW1/3 and X ray film is ExRW1/4. He was cross examined in detail by the petitioners' counsel. 7.1.Sh N. K Puri/8th respondent (now deceased) examined himself independently though joint objections were filed by him with others. His affidavit in evidence is ExDW1/A. He relied on letter written by him to his brother Sh Naval Kishore Puri ExDW1/1. He also relied on letter written by him to his sister Smt. Nirmal Chopra as ExDW1/2. Two Result: Petition allowed. Page 22 of 100 Jugal Kishore v State & Ors. PC 19/06/05 other letters written by his above sister to him are ExDW1/3 and ExDW1/4 respectively on which he identified her signature at point X. He also relied on letters written by Sh. Naval Kishore Puri as ExRW1/5 to ExRW1/8 respectively and identified his signature at point X. Objection was taken regarding exhibition of these documents by the petitioners. The witness was duly cross examined by the petitioners' counsel.
7.2. The respondents also examined one more witness Dr. Subhash Chander Khanna, proprietor of Khanna Nursing Home, Janak Puri, Delhi as RW 3. He testified that in 1980 he, as Medical Superintendent (Surgery), used to visit Dhawan Nursing Home for performing surgeries. He could not remember whether he performed surgery upon Sh Roshan Lal Puri or not. However, he testified that no record is maintained qua surgeries performed for Phimosis as the same are done without admitting the patient in their hospital. He testified that record pertaining to Sh Roshan Lal Puri could not be traced.
7.3. Lastly, the respondents examined Sh Surender Kumar, UDC from the office of Superintendent Engineer, Postal Electric Circle, New Delhi as RW 4 who produced the certificate/letter issued by Superintending Result: Petition allowed. Page 23 of 100 Jugal Kishore v State & Ors. PC 19/06/05 Engineer (E) which is ExRW4/A. It is a certificate/letter issued by EA2, Superintending Engineer (E) of said office.
7.4.The respondents no. 4B and 4C did not adduce any evidence on their behalf. As noted earlier, they were proceeded exparte on 7.1.2010 and evidence on their behalf was also closed.
8. This Court has heard detailed arguments presented by Sh Ankur Mahendru, advocate on behalf of the petitioners, Sh P.K. Jain, ld. Counsel appearing on behalf of respondents no. 2, 6 & 8. (it was clarified by Sh Jain, advocate on 19.5.2014 that he is not appearing for respondents no. 3, 4 & 7) and Sh Astender Kumar, counsel for LRs of deceased respondent no.5. I have also gone through written submissions filed by the appearing counsels and their list of reliance. Arguments by Petitioners 8.1.Ld. counsel for petitioners broadly argued that registration of Will in question is not in dispute as there is an implied admission regarding it in the objections filed by the Lrs of 4th objector. It is further submitted that the tenor of cross examination of witnesses of petitioners goes to demonstrate that the respondents are not standing in opposition to the fact that Will ExP1 was actually presented for registration and was Result: Petition allowed. Page 24 of 100 Jugal Kishore v State & Ors. PC 19/06/05 registered on 1.12.94. It was argued that deceased Sh Roshan Lal Puri himself was an advocate and drafted the Will ExP1 after having corrected it by virtue of its earlier draft ExPW1/A in which he made corrections in his own hand writing. It is pointed out that it is this draft which the attesting witness of the Will i.e PW 3 is referring to in his cross examination while stating that when he arrived, the typist was typing the original Will from a draft. It is pointed out that plain reading of the Will shows the reason for bequeathing the property in question solely upon the petitioners i.e, they were staying with him and have been taking care of him. It was urged that the factum of deceased noting the fact that his wife died in 1988 is in itself an indicia to his intent of making such Will bequeathing in favour of petitioners only as it was in the year 1988 when his other son Sh D.P Puri (respondent no. 2) had also shifted from his residence alongwith his family. 8.2. It is further argued that the evidence reveals that admittedly Tuberculosis is curable disease while Phimosis is requiring a surgery that does not even requires hospitalization of patient. It is pointed out that none of the ailment purportedly suffered by the deceased could have affected his sound disposing state of mind. It was urged for this Court to Result: Petition allowed. Page 25 of 100 Jugal Kishore v State & Ors. PC 19/06/05 note that Dr. S.C Khanna admitted in cross examination that Phimosis is not a mental problem and patient is capable to comprehend what is wrong and right for him. It is pointed out that no medical record pertaining to deceased Sh. Roshan Lal Puri being bed ridden and devoid of his mental capabilities is placed on record. It is further urged for this court to note that there are several voluntary statements given by the witnesses of petitioners which have been left unattended without any suggestion to the contrary and therefore, should be taken as admitted. Arguments by Respondents 8.3. Sh P K Jain, advocate broadly argued that the Will in question is undated Will. He started his arguments by presenting the fact that execution and registration of a document, in this case Will, are two separate aspects and are to be viewed so. The argument was later toed throughout his submissions in order to assert that mere registration of a document will not prove its due execution, which in this case is under suspicious circumstances as both the attesting witnesses to the Will were admittedly under the supervision of the first petitioner in P & T department. This argument is further toed by demonstrating that the signature of Sh. Manjeet Singh on Will ExP1 were put by him in Result: Petition allowed. Page 26 of 100 Jugal Kishore v State & Ors. PC 19/06/05 margin and not at the designated place i.e. Serial no. 2. On the strength of this argument, it is urged to this Court to record a finding that Sh. Manjeet Singh did not sign the Will at the time of its registration but only later. It is further argued that Sh Bhag Chandani, advocate, third attesting witness has not been examined. It is submitted that only he is the independent witness in this case and his examination was necessary. It is further argued that the verification to the petition by one of the attesting witness Sh P.C Varshney is defective and goes on to support the case of the respondents as the said verification is not referring to presence of the other attesting witnesses namely Sh. Manjeet Singh. It is also submitted that there is serious contradiction in the contents of affidavit of PW 2 and PW 5. It is pointed out that both of them have in para 9 of their respective affidavits submitted that after performing the last rites of Sh Roshan Lal Puri, PW 2 had shown the Will to all his brothers and sisters except Kamal Kishore Puri who had not attended the cremation and that after going through the contents of the Will, the objectors had accepted the Will. In this context, it is pointed out that in para 4 of the reply to the objections it is stated that after returning from cremation ground, the petitioners showed the Will to all the objectors Result: Petition allowed. Page 27 of 100 Jugal Kishore v State & Ors. PC 19/06/05 who accepted its correctness, having understood it. Thus, Sh Jain, advocate took this court to relevant part of cross examination of PW2 and PW 5 wherein they said that they received information regarding execution of Will from the attesting witness Sh. Manjeet Singh and Sh. P.S Varshney on the day of Chautha ceremony only and that it was after few days of the Chautha ceremony that PW 2 allegedly met Sh. Bhag Chandani advocate to collect the original Will. It is further argued that the testator is silent in his Will regarding the fact that as to whether the said Will is last Will or not. It is argued that mental and physical condition of the testator is not provided in the Will. It is argued that the averment that Sh. Bhagchandani advocate did not know the first petitioner but still handed over the original Will to him is an afterthought. It is further argued that no person of the age of 83 years who is also sick, shall ever hand over the original Will to an Advocate. It is further argued that the letter dated 6.11.94 relied upon by the petitioners does not show that it was personally applied by the deceased in the bank. It is further argued that list of expenses of the month of December 1994 ExPW1/E has been filled using two different inks. It is pointed out that the fact that only a single page has been filed indicates Result: Petition allowed. Page 28 of 100 Jugal Kishore v State & Ors. PC 19/06/05 that it is fabricated. If record of such expenses, if any, it would have been maintained by the deceased in a proper manner and not on loose pages. It is further pointed out that no details of expenses incurred on registration of Will are found mentioned in it. It is also argued that draft Will ExPW1/A makes mention of Jallandhar property while there is no such mention in Will ExP1.
8.4. In support of his contentions, ld counsel for the above respondents relied on following case laws, viz;
A. Niranjan Umeshchandra Joshi v Mrudula Jyoti Rao & Ors decided by the Hon'ble Supreme Court of India on 15.12.06 in civil appeal no. 5060 of 2005 wherein the Hon'ble Apex Court had discussed the "suspicious circumstances attending to execution of a Will". In this case, the deceased was found to be suffering from Malignancy Liposercoma (sic). There was also some evidence to show that he was suffering from left ventricular failure with Ischemia heart disease. He had also developed some respiratory problem and was being investigated by one Dr. Panikar, student of appellant and son of deceased Umesh Chandra Joshi. He executed a Will at Breach Candy Hospital, Mumbai in the cubicle of ICCU. After cremation of dead body Result: Petition allowed. Page 29 of 100 Jugal Kishore v State & Ors. PC 19/06/05 pursuant to death of deceased, the factum of execution of Will was disclosed. Other LRs of deceased give their consent letter in the office of Advocate of deceased but no steps were taken for obtaining a probate soon thereafter. Subsequently, one of the LRs of the deceased withdrew her no objections. One more LR also filed a caveat and thus the dispute arose. During pendency of the appeal, one more sister of appellant revoked her consent to the probate petition. The judgment of Hon'ble Apex Court makes note of the distinctive aspects noted by the Hon'ble single judge of the Hon'ble High Court as well as its Division Bench which had affirmed the judgment and order of Ld. Single Judge thereby arrived at a concurrent finding regarding the Will being executed under suspicious circumstances. The Hon'ble Apex Court also noted the stand that had been held to be described by the Apex Court as 'suspicious circumstances', viz;
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himself takes prominent part in the execution of Result: Petition allowed. Page 30 of 100 Jugal Kishore v State & Ors. PC 19/06/05 Will which confers on him substantial benefit.
Noting all the points noted by the Single Bench and Division Bench of Hon'ble High Court of Delhi, the Hon'ble Apex Court arrived at a finding that the decision was not to be disturbed and thus the appeal was dismissed. The Hon'ble Apex Court had also noted that onus would be on the propounder to remove the suspicion by leading sufficient and cogent evidence if there exists any. It was also noted that in the case of proof of Will, the signature of testator alone would not prove the execution thereof if his mind may appear to be very feeble and debilitated. It was also noted that if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. In the case in hand before this Court, the respondents are indeed raising claim that the petitioners coerced and put undue influence on the testator besides the claim that the testator was bed ridden and could not execute or could get the Will ExP1 registered.
B. Rani Purnima Debi & Anr v Kumar Khagendra Narayan Deb & Anr. AIR 1962 SC 567 (V 49 C88) to the effect that the mere fact that the Will is registered Will not itself is sufficient to dispel all the suspicion regarding it where suspicion exists, without submitting the Result: Petition allowed. Page 31 of 100 Jugal Kishore v State & Ors. PC 19/06/05 evidence of registration to a close examination. If such examination reveals that registration was made in such manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration of will dispel the doubt as to the genuineness of the Will but if the evidence as to registration shows that it was done in a purfunctory manner that the officer registering it did not read it over to the testator or did not bring home to it that he was admitting the execution of Will or did not satisfy himself in some other manner that the testator knew that it was a Will, the execution of which he was admitting, the fact that the Will was registered would not be of much value.
C. Joseph Antony Lazarus (Dead) by LRs v A.J Francis 2006 (2) CCC 134 (SC) to the effect that entire circumstances of the said case coupled with the fact that the advocate who drafted the Will and Sub Registrar before whom the Will was registered was not examined hence genuine doubt on genuineness of the Will.
D. Pratap Singh & Anr v State & Anr 173 (2010) DLT 132 (DB) to the effect that it is duty of the Probate Court to see whether prima facie Result: Petition allowed. Page 32 of 100 Jugal Kishore v State & Ors. PC 19/06/05 document constitutes a Will and propounder is able to satisfy conscience of Court that Will was validly executed and genuine document and signed out of free will in sound disposition of mind. In the said case, no cogent evidence of the Doctor who treated the Testator or the Lawyer who prepared the will was brought on record. The said judgment is also relied on the aspect of limitation on the ground that Article 137 of the Limitation Act 1963 applies to petition for grant of probate and letter of administration and that the period of three years would commence at least from the date on which legatee under Will could be justifiably ascribed with knowledge that Will on which claim is founded is likely to be disputed by other persons, especially natural heirs of Testatrix. E. Suraj Prakash (Deceased) through LRs v Usha Rani & Ors 182 (2011) DLT 337. This case is a regular first appeal from the orders of trial Court in a suit for Declaration, Possession and Injunction which was decreed on the ground that the Will propounded by the appellants/sisters of deceased was an unnatural Will and was disinherited by the respondents who were widow and children of the deceased. It is also observed that Will in question was unregistered Will and surrounded by many unnatural circumstances. It was also observed that if the Will was Result: Petition allowed. Page 33 of 100 Jugal Kishore v State & Ors. PC 19/06/05 genuine, the deceased would surely have chosen a witness known to his wife and children and not just normal acquaintance. Finding of trial Court was affirmed.
F. Vasudeo Mahadeo Paranjape v Suman Anant Paranjape & Ors 1994 M.P L.J 20 on the aspect of Will and its proof. In the said matter, at least 17 suspicious circumstances were noted. As a matter of fact, in the said case, the Will in question was neither registered nor notarized. Arguments of Respondent No. 5.
9. Sh Astender Kr, counsel for LRs of deceased respondent no. 5 adopted the arguments addressed by Sh P K Jain, advocate. In addition to it, it was submitted that there is a difference between the contents of back page of the original Will ExP1 and its certified copy. This aspect was considered at the time of final arguments. This objection was found to be misfounded by virtue of judgment relied by the petitioners in case titled Santosh Dutta v Surender Krishan Balik & Anr. 2014 (140) DRJ 525. A comparison shows that there are differences in the endorsement on the reverse of the certified copy of the Will obtained from the office of Sub Registrar concerned and copy which was supplied by the petitioners to the counsel for respondents and it would be revealed by comparison of Result: Petition allowed. Page 34 of 100 Jugal Kishore v State & Ors. PC 19/06/05 the endorsement on the reverse on the original Will ExP1. As a matter of fact, this aspect can be further laid to rest here itself as the record indicates that the original Will was filed much subsequent to filing of the probate petition in this Court. Further, this aspect is taken care of in para 22 of Santosh Dutta's case (Supra) wherein the Hon'ble Delhi High Court while examining the similar arguments as to whether being akin to a 'suspicious circumstances' or not, concluded that "on a collective reading of Section 61 and Section 52 (1)(c) of the Registration Act as applicable to Delhi, it is seen that there is a requirement of a will, which is sought to be registered having to be simultaneously prepared in duplicate and signed. It is possible that while signing on duplicate copies and making the handwritten corrections, there may be a slight difference in the copy and the original". Similar being the circumstances here and considering the fact that reverse page of the certified copy shows that it was signed by the same persons who signed on the reverse page of original Will ExP1 dispels this argument regarding a suspicious circumstance.
Rebuttal Arguments
10.Sh Ankur Mahendru, counsel for petitioners argued in rebuttal that Result: Petition allowed. Page 35 of 100 Jugal Kishore v State & Ors. PC 19/06/05 Section 281 of the Act which requires verification by one witness to the Will also prescribes the language of the verification which only requires the witness to testify that he was present and saw the testator affix his signature or mark thereto or that the said testator acknowledged the writing annexed to the above petition to be his last Will and testament in his presence. It was submitted that it does not require a submission to be made to the effect that as to who else was present. Merely because the witness who in the said verification refers only to Sh C.M Bhagchandani, Advocate is not at all a reason sufficient enough to infer absence of other attesting witness Sh Manjeet Singh. Ld. counsel also argued that the petitioners have complied with all the requirements of Section 68 of the Evidence Act. It was asserted that this Court is only concerned with the execution/registration of will in question and will not go into the aspect of title. Ld. counsel also urged that point of defence taken by the respondents regarding disclosure of contents of will by the first petitioner to the remaining respondents except Sh Kamal Kishore Puri after conclusion of last rites of deceased Sh. Roshan Lal Puri and argued in furtherance to it that the first petitioner came to know about execution and registration of will ExP1 only on the day of Uthala. It is submitted Result: Petition allowed. Page 36 of 100 Jugal Kishore v State & Ors. PC 19/06/05 that this defence has no force as the term 'last rites' is a subject matter of interpretation. It was also argued that the objectors have not at all made a case that the Will does not bear the signature of the testator. It is further submitted that the witnesses of the petitioners as PW 2 and PW 5 have given voluntary explanations of the circumstances requiring further explanation and despite such voluntary statements, no contrary suggestion has been offered to these witnesses. It is further argued that the petitioners are required only to examine one attesting witness of the Will whereas they have examined two. It has been lastly argued that the petitioners are not aware about the whereabout of Sh Bhagchandani, advocate and this fact has come in the evidence. The petitioners also relied on following judgments apart from Santosh Dutta's case (Supra), viz;
A. Sada Nand Choudhary v Wanti Devi & Ors 196 (2013) DLT 135 on the aspect of Section 68 of the Evidence Act 1872 read with Section 63 (c) of the Indian Succession Act in order to strengthen his arguments that due execution of will ExP1 has been proved by the attesting witnesses i.e PWs 3 & 4.
B. Rajindra Motwani v State & Ors 208 (2014) DLT 373 to the effect Result: Petition allowed. Page 37 of 100 Jugal Kishore v State & Ors. PC 19/06/05 that mere presence of propounder of Will at the time of its execution and registration has no material bearing on authenticity or genuineness of the Will when no evidence is led by the respondents to show how said person made attempt to influence or coerce the testator. This judgment is also relied on the aspect that if some natural LRs are excluded as beneficiaries in the Will and that the testator has given reason in the Will, it is not a circumstance to show that any coercion, force or pressure was brought upon the testator to execute the Will. The judgment also deals with the aspect of limitation visavis Article 137 of the Limitation Act and holds that right to apply accrues at least from the date on which the legatee under a Will could be justifiably ascribed with knowledge that the will is likely to be disputed by other persons. It was held that so long the rights of any particular legatee are to emanate and flow from the Will, probate proceedings ought to be filed at least within three years from this conjectured withdrawal of permission. This judgment is also relied on the aspect that a disproportionate bequest by itself is not a suspicious circumstance and that if a Will is registered, there is presumption of genuineness which is of course, rebuttable.
11. The primary issue before me is consideration on the aspect of limitation Result: Petition allowed. Page 38 of 100 Jugal Kishore v State & Ors. PC 19/06/05 and examination of circumstances attending to execution/registration of the Will, its genuinity and the aspect of soundness of disposing power of deceased Sh Roshan Lal Puri. In doing so, the Court shall be guided by the following law on the subject viz;
Section 63 (C) of The Indian Succession Act,1925 requires that 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 been 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 the law does not necessarily require that more than one witness be present at the same time, or that a particular form of attestation is necessary.
As per section 68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least 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, capable of giving evidence. Result: Petition allowed. Page 39 of 100
Jugal Kishore v State & Ors. PC 19/06/05 It is further a settled provision of law that a court acting under the Indian Succession Act for grant of probate, acts as a court of conscience and the jurisdiction of such court is limited only to consider the genuineness of the Will and the question of title or share in the property cannot be gone into by the probate court. The probate court do not decide the question of title or of existence of property itself and any construction relating to right, title and interest to any other person is beyond the domain of the probate court. Reliance placed on 2008 (4) SCC 300 Krishan Kumar Vs. Rajinder Singh Lohra & ors. It is further pertinent to point out that for obtaining the probate the petitioner is not only required to prove the execution of the subject Will but is also required to weed out any circumstances surrounding the subject Will which may be lead to a possible suspicion challenging the valid execution of the Will. Reliance placed on AIR 1930 PC 24 titled Vella Swamy Servai Vs. L. Shivraman Servai.
In a full bench judgment of the Hon'ble Apex Court reported in (1959) Supp. 1 SCR 426 titled H. Venkatachala Iyengar Vs. B. N. Thimmajamma, the Hon'ble Apex Court has discussed the entire Result: Petition allowed. Page 40 of 100 Jugal Kishore v State & Ors. PC 19/06/05 gamut of law relating to the discharge of the onus of proving the Will while dwelling into sections 45,47,67 & 68 of Indian Evidence Act, 1872 and sections 59 & 63 of the 1925 Act and observed :
"Section 63 requires that the testator shall sign or affix his mark to the Will 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 dispositions in the Will ? Did he put his signatures to the Will knowing what it contained ? Stated 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 other document except as to the special Result: Petition allowed. Page 41 of 100 Jugal Kishore v State & Ors. PC 19/06/05 requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of Wills it would be idle to expect proof with mathematical certainty.
The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
The Hon'ble court has thus held that propounder of the Will is required to be called upon by the court to show satisfactory evidence that the propounded Will was signed by the testator and that the testator at the relevant time was in a sound and disposing state of mind and that he has understood the nature and effect of dispositions and put his signatures to the document of his own freewill. It has been further held that :
"Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts Result: Petition allowed. Page 42 of 100 Jugal Kishore v State & Ors. PC 19/06/05 just indicated."
The Hon'ble Apex Court has further discussed the circumstances, which may be termed as suspicious circumstances surrounding the Will and held that there may be circumstances where the signatures of the testator may be shaky, doubtful or the condition of testator's mind may appears to be feeble and debilitated so as to raise a legitimate doubt as to mental capacity of the testator to the extent that the dispositions made in the Will may appear to be unnatural, improbable or unfair or the Will may indicate that the same may not be result of testator's free mind or will and in as such circumstances, the onus upon the propounder is held to be comparatively heavy. The Hon'ble court has succinctly held that :
"It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate Result: Petition allowed. Page 43 of 100 Jugal Kishore v State & Ors. PC 19/06/05 doubts in the matter."
It has been further held that an active participation of the propounder or the fact that the propounder has taken a prominent part in the execution of the Will and that he has also received substantial benefit under it, itself is generally treated as a suspicious circumstance which is required to be eliminated by the propounder by way of a clear and satisfactory evidence.
The ratio of H. Venkatachala Iyengar's case (supra) was later relied upon by the Hon'ble Apex Court in Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, AIR 1964 SC 529 and other similar cases and was finally analysed by the Hon'ble Apex Court in Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369 wherein, the Hon'ble Court has called out the various prepositions :
"1). Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2). Since Section 63 of the Succession Act requires a Will to be attested, it cannot be Result: Petition allowed. Page 44 of 100 Jugal Kishore v State & Ors. PC 19/06/05 used as evidence until, as required by section 68 of the Evidence Act, one attesting witness at least 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 giving evidence.
3). Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
4). Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, and unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other Result: Petition allowed. Page 45 of 100 Jugal Kishore v State & Ors. PC 19/06/05 circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reason, for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5). It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the court is called Result: Petition allowed. Page 46 of 100 Jugal Kishore v State & Ors. PC 19/06/05 upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator.
6). If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the Will, such pleas have to be proved by him but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
In Uma Devi Nambiar Vs. T. C. Sidhan, III (2004) SLT 754, the division bench of the Hon'ble Supreme court has further held that a Will is generally executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, Result: Petition allowed. Page 47 of 100 Jugal Kishore v State & Ors. PC 19/06/05 conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, (by itself without anything more), cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring only and the suspicious circumstance must not be illusory or mere fantasy of the doubting mind but has to be real, germane and valid.
It has been further a settled preposition of law that mere circumstances of the deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of the Will. Reliance placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam VII (2005) SLT 423.
Having discussed aforesaid, the propounder of the Will under the law is required to prove the same in accordance with requirements of section 63 of the Indian Succession Act, read with section 68 of the Evidence Act, besides removing any suspicious circumstances and surrounding the same. The court shall be discussing the aforesaid Result: Petition allowed. Page 48 of 100 Jugal Kishore v State & Ors. PC 19/06/05 aspects in the light of the evidence which is come on record.
12.Issue no. 1.
Whether the present petition is barred by limitation and if so, its effect ? OPR.
The onus of this issue was placed upon the respondents. The pleadings in this regard are constituted in para 4.2 of the judgment above wherein it is averred by the first set of objectors that soon after the death of Sh Roshan Lal Puri, his LRs had agreed to partition the property and at which time, the petitioners consented without uttering a single word regarding the Will which is propounded after a lapse of 10 years w.e.f the date of death of the deceased. Likewise, the second set of objectors have more categorically raised this plea as recorded in para 5.1 of this judgment. On both the occasions, the petitioners in their reply to the objections have denied that the present petition is hit by law of limitation. It is in para 5 of this judgment that after returning from the cremation ground, the first petitioner showed the will to all the objectors who accepted the same and that is why they did not file any case for partition. More detailed reply/pleadings on this aspect are to be viewed in reply to the objections of second set of objectors which have been incorporated in Result: Petition allowed. Page 49 of 100 Jugal Kishore v State & Ors. PC 19/06/05 para 5.2 of this judgment.
12.1 It is further recorded therein that attesting witness had told the first petitioner after Chautha ceremony of the deceased about execution of the Will which was then in custody of Sh C.M. Bhagchandani, Advocate. After collecting the same from Sh Bhagchandani, advocate, the petitioner immediately disclosed it to all the objectors except the objector Sh Kamal Kishore Puri who agreed to give their no objection but kept it pending. Thus, mutation was applied in November 2003 and not made on account of objections. It is thus claimed that right to sue survives as on the date of the rejection of the mutation request.
12.2. It is disputed by the objectors that the Will was ever shown to them after the cremation of the deceased Sh Roshan Lal Puri or after his Chautha ceremony. They claimed no knowledge of the Will till receipt of the notice from the DDA. In ExPW2/B i.e the additional affidavit of evidence of PW2 Sh Jugal Kishore which was allowed to be taken on record on 10.10.07, PW 2 produced copy of application submitted by him to the DDA for mutation (ExPW1/F) and the rejection letter of the DDA dated. 21.7.04 (ExPW1/G). Considering the averment of the objectors of not knowing anything about the Will ExP1, it would not be Result: Petition allowed. Page 50 of 100 Jugal Kishore v State & Ors. PC 19/06/05 at all improper to say that regardless of them knowing or not knowing about the existence of the Will prior to the year 2004, objection in writing for the very first time were lodged before the DDA by them in the year 2004 only. In this context, it is in the cross examination of PW 2 dated 2.7.08 where the witness/first petitioner admits to correctness of the suggestion that during the life time of Sh Kamal Kishore Puri, he never disclosed the existence of Will to any LRs of his father and took no steps in pursuance to the Will. There is a Court observation recorded to the effect that on suggestion of his advocate, the witness improved his statement and went on to say further that after 34 days after Chautha of his father he showed the will to his brothers and sisters except Sh. Kamal Kishore because he did not come at the time of death of his father. There is ambiguity in regard to date of the alleged disclosure of the Will which I shall deal with while considering the second issue. What the witness has stated to the Court and has been noted in the Court observation is actually in furtherance of the pleadings wherein the petitioner did say of having shown the Will to the remaining LRs after cremation/Uthala of the deceased. It is however being specifically noted that nothing has come in the cross examination regarding any occasion on the part of the Result: Petition allowed. Page 51 of 100 Jugal Kishore v State & Ors. PC 19/06/05 objectors to have raised objection to the Will as they claimed its knowledge from DDA in the year 2004 only. This petition was presented on 3.1.2005.
12.3 In Rajindra Motwani's case (Supra), the Hon'ble High Court of Delhi dealt with this aspect of the Limitation. While referring to a decision of The Division Bench in Hari Narain v Subhash Chander, MANU/PH/0163/1985, the Hon'ble High Court noted that as per Hari Narain's case, the Article 137 of the Limitation Act 1963 would apply to any petition or application filed in a Court where no other period of limitation had been prescribed. The Hon'ble High Court extended the ratio of said decision 'mutatis mutadis' to also cover cases pertaining to grant of Probate where it can be fairly assumed that the petitioner had knowledge that the Will was likely to be disputed. According to Article 137, in such cases, the period of limitation is three years from when the right to apply accrues. It was further noted that the period of three years would surely commence at least from the date on which a legatee under a will could be justifiably ascribed with the knowledge that the Will on which his claim is founded is likely to be disputed by other persons. The Hon'ble High Court also cited an example by way of adumbration Result: Petition allowed. Page 52 of 100 Jugal Kishore v State & Ors. PC 19/06/05 hypothetically assuming a Will may have been executed in Delhi in 1950. It further went on to say that the bequests made and dealt with therein may not have come into any dispute for several decades. It observed that it could be that some legatees were in possession of the properties with the tacit permission of other legatees and the approval was subsequently withdrawn. The Hon'ble High Court observed that so long as the rights of any particular legatee are to emanate and flow from the will, probate proceedings ought to be filed at least within three years from this conjectured withdrawal of permission. That would then be the latest date on which 'the right to apply accrues'. This would be the most appropriate and meaningful interpretation given to the words 'when the right to apply occurs'.
12.4. The Hon'ble High Court further referred to Kunvarjeet Singh Khandpur v Kirandeep Kaur & Ors (2008) 8 SCC 463 where the Court recorded with approval the submissions of the counsel for the appellant that the crucial expression 'right to apply' in terms of Article 137 of the Limitation Act would mean that when a dispute about genuineness of the will arose.
12.5. Similar view was earlier taken by the Hon'ble High Court of Delhi Result: Petition allowed. Page 53 of 100 Jugal Kishore v State & Ors. PC 19/06/05 itself in Pratap Singh's case (Supra) that is relied in this case by the respondents.
12.6. In the instant case, it is not in dispute that petitioners applied for mutation of the property in question before the DDA. It is also not in dispute that the permission was denied on account of objections preferred by the objectors.
12.7 The letter dated 21.7.04 ExPW1/G which is a communication by Sh. Sanjeev Kr, Deputy Director (Residential) DDA Vikas Sadan to the first petitioner reveals that the first petitioner was informed to settle the dispute from the law Court qua registered Will ExP1 as it was not acceptable by the LRs of deceased lessee. It is also observed that copy of this letter was sent to Sh D.P Puri, Smt.Nirmal Chopra, Sh Kanwal Kishore Puri, Sh Naval Kishore Puri, Sh Dharam Pal Puri, Smt. Urmil Dhir, Smt Shashi Dhawan and Sh Naresh Kr Puri. These are the objectors herein. It has to be kept in mind that the petitioners have been saying that the will was disclosed to all the LRs in December 1994 itself. It is their stand that the objectors accepted its correctness but delayed giving NOC forcing the petitioners to apply for mutation of the property. According to the objectors, they were not aware of the Will. This aspect Result: Petition allowed. Page 54 of 100 Jugal Kishore v State & Ors. PC 19/06/05 has to be considered while dealing with the second issue. What follows is that in view of the first objections filed before the DDA, the right to sue would have accrued at that point of time. There is nothing in the cross examination of PW 2 and PW 5 on document ExPW1/F and ExPW1/G. Moreover, the affidavit of respondent no. 2 ExRW1/A is silent on the aspect of limitation. The affidavit of respondent no. 8 Sh N. K Puri which is ExDW1/A is also silent on the aspect of limitation. The other set of respondents have not lead any evidence. Thus, the onus of this issue remains undischarged by the respondents. In view of the discussion, the issue is decided in favour of the petitioners and against the respondents.
13. Issue no. 2.
Whether the will dated 1.12.1994 propounded by the petitioners in this case is the last and genuine will of late Sh. Roshan Lal Puri and if so, was it validly executed by him while in sound disposing mind ? OPP.
This issue pertains to due execution and due registration of Will ExP1. It also pertains to the aspect as to whether the Will ExP1 is the last and genuine will of deceased Sh Roshan Lal Puri or not. It also pertains to his soundness of mind while disposing.
Result: Petition allowed. Page 55 of 100
Jugal Kishore v State & Ors. PC 19/06/05 13.1. The will in this case is a registered Will and therefore, raises rebutable presumption qua its registration. The first petitioner as PW 2 identifies the signature of his father Sh Roshan Lal Puri at points A and B on the first and second page of Will ExP1. He testified that he got knowledge of execution of this Will through his office colleagues/attesting witnesses Sh P.S Varshney (PW4) and Sh Manjeet Singh (PW3). Likewise, PW 5 also testifies that her father in law had executed the Will ExP1. Both the PWs 3 & 4 testified presence in the office of Sub Registrar concerned where they signed in the presence of each other after knowing the contents of the Will which was then stamped and registered before the Sub Registrar. Sh C.M Bhagchandani, Advocate had not been examined and the explanation on the record is that the petitioners do not know about his whereabouts. Thus, prima facie requirement of Section 63(c) of Indian Succession Act, 1925 as well as requirement of Section 68 of the Indian Evidence Act,1872 are raising presumption of its due execution which is rebuttable. In order to rebut the presumption, the defence has crossexamined the witnesses of the petitioners and also produced their own evidence. According to the petitioners, they were not present at the time of execution of Will. The Result: Petition allowed. Page 56 of 100 Jugal Kishore v State & Ors. PC 19/06/05 Will, as stated earlier, has been proven to have been registered at the office of Sub Registrar, Janak Puri on 1.12.94 by PW 1. PW 2 in his cross examination by advocate for respondents 4B and 4C submits that Sh Bhagchandani is an advocate but not his friend and thus he did not know where he resides. He has not seen his house and he does not know as to where he practices. He stated that he was not aware of the execution of will till the death of his father. He was not suggested to the contrary but was otherwise suggested something the answer to which strengthens the other answers of the witness in this regard. The suggestion is as under:
'It is incorrect that since the day of its execution the will was in my possession. It is incorrect that after putting undue pressure on my father, I got this will executed from him.' 'It is incorrect that will has been forged by me in connivance with the attesting witnesses. It is incorrect that I obtained the signature of my father on this paper without disclosing him the contents of the documents."
These respondents have not lead their own evidence. 13.2In the cross examination by advocate Sh P.K Jain on behalf of other Result: Petition allowed. Page 57 of 100 Jugal Kishore v State & Ors. PC 19/06/05 respondents, PW 2 deposed that for the first time he came to know about existence of the will on 20/21.12.94. The attesting witness had told him about the Will when they came to attend the Chautha ceremony of his father and also told him that it was in possession of Sh Bhagchandani, Advocate. He also testified to be not aware that the attesting witness had gone to the office of Sub Registrar on the day of execution of the Will after seeking permission from his Boss. The witness was suggested that both the attesting witnesses had gone to the office of Sub Registrar on his instructions but became the witness of the will to be executed by them. The first suggestion as stated above is reproduced here under in the words of the witness in order to demonstrate as to what was being actually suggested. Same is accordingly reproduced here under as;
'It is incorrect that both the attesting witnesses went to the office of Sub Registrar on my instructions to became the witness of the will to be executed by my father.' 13.3.Once the defence goes to suggest the witness of the prosecution that the attesting witnesses had gone to the office of Sub Registrar to become a witness of the Will which was to be executed by his father, there is Result: Petition allowed. Page 58 of 100 Jugal Kishore v State & Ors. PC 19/06/05 implied admission that the execution as well as registration of the Will is not being disputed. Not only this, further suggestions also strengthen the above observation. In the further cross examination of PW 2, he was suggested as following:
'It is incorrect that all through out from the day of execution of will till the death of my father, I was in possession of this will. ...... It is incorrect that the will was got prepared by me and given to my father for the purpose of registration without his understanding the contents of the will.' Further down the cross examination, the witness was suggested the following:
'It is incorrect that the signature of Sh Manjeet Singh were obtained on the will after the death of my father.' 13.4.The tenor of this cross examination is clearly indicative of the fact that at one point of time, the defence suggests the witness that the attesting witnesses had gone to the Sub Registrar office to witness the registration of the Will which PW 2 got signed from the testator without him Result: Petition allowed. Page 59 of 100 Jugal Kishore v State & Ors. PC 19/06/05 understanding its contents while on the other hand, defence suggests to the contrary that Sh Manjeet Singh could not have been present before the Sub Registrar and thus his signature were taken after the death of his father. They can not go hand in hand.
14.PW 3 Sh Manjeet Singh stated that petitioner no. 1 is his colleague and senior and he knows Sh Roshan Lal Puri as he resided in his neighborhood. He deposed that he saw the Will in the office of Sub Registrar, Janak Puri on being called there by Sh Roshan Lal Puri by way of request when he met 56 days prior to its execution when he was passing through his house to go to the Bus Stop. According to him, he had entered the house of Sh Roshan Lal Puri only twice in his life when he had gone to meet the petitioner. He testifies that he remained in the office of Sub Registrar from 9.45 a.m to 11 a.m after having sought oral permission from his Boss. It is also in the cross examination that when he reached the office of Sub Registrar, the testator was sitting with the advocate and a typist was already typing the Will. Only Sh. Roshan Lal was present with his advocate and one typist was typing the will. When he signed the will, Sh Roshan Lal himself and Sh. P.S Varshney as well as advocate were present. No dictation of the will was given in his Result: Petition allowed. Page 60 of 100 Jugal Kishore v State & Ors. PC 19/06/05 presence as it was already typed by the typist who was having a draft from which he typed it. He testifies that the Will was read over and explained to the testator in presence of both the attesting witnesses by the advocate. This witness also reproduced the contents of the will orally in the Court on the day of his cross examination. He gives sequence in which the will was signed by the persons present which matches his examination in chief as well as the testimony of PW 4. He also stated that Sh P.S Varshney (PW4) had reached the office of Sub Registrar after 23 minutes of his reaching there. This witness was sought to be suggested that Sh Roshan Lal Puri was not in a position to move independently in December, 1994 without the support of any other person. On this, the witness has volunteered as under:
"Vol. He met me in the office of Sub Registrar and even appeared before the Sub Registrar."
No specific suggestion was given to him to the contrary. Only a general suggestion to the effect that no Will was signed and executed in his presence shall not suffice.
In cross examination by counsel for respondents no. 4 B and 4C, a peculiar question was asked to which the answer of the witness is Result: Petition allowed. Page 61 of 100 Jugal Kishore v State & Ors. PC 19/06/05 hereunder:
"I am not aware that testator suffered paralytic attack in the end of November, 1994. It is incorrect that due to paralytic attack Roshan Lal was unable to move in the month of December 1994. When he met me in the office of sub registrar he was walking independently without any stick."
The last answer suggests that the defence was putting to the witness to recollect from his memory as to whether Sh Roshan Lal Puri was walking independently at the office of sub registrar and without using any stick as a help. The answer of the witness is recorded above. No contrary suggestion was given to him that he could not even walk with or without stick as at the first place, the defence maintained that Sh Roshan Lal Puri could not have gone to the office of sub registrar at all and has also maintained that the sub registrar was taken to Sh Puri's house for registration.
14.1 Sh P.S Varshney (PW 4) states that deceased was not related to him nor of his age. He was not his friend. He visited his house three times i.e around July 1993, October 1993 and six months before execution of the Result: Petition allowed. Page 62 of 100 Jugal Kishore v State & Ors. PC 19/06/05 will. Sh Roshan Lal Puri had taken his telephone number. 56 days prior to execution of Will, he had telephoned him. He was asked to come to the office of Sub Registrar, Janak Puri on 1.12.1994 where he directly went and found the testator, advocate Sh Bhagchandani and PW3 Sh Manjeet Singh standing outside the room of the Sub Registrar. The witness had taken prior permission of his Superintending Engineer to make this visit. On his reaching there, he found that testator was carrying a 'typed will' in his hand. Its contents were read by the testator himself to him. Then all of them entered in the office of Sub Registrar where it was signed in the manner indicated in the cross examination which tallies with the manner provided by PW 3. The witness was suggested as under:
"It is incorrect that Sh Roshan Lal Puri was not physically fit to visit the office of Sub Registrar on 1.12.1994. It is incorrect that petitioner was also present there at the time of this document called will was executed. It is incorrect that he being the junior of the petitioner obliged him by signing this will without the knowledge of Sh Roshan Lal. It is incorrect that no will was executed by Sh Roshan Lal in their presence or in the presence of Sh Bhagchandani."
Result: Petition allowed. Page 63 of 100
Jugal Kishore v State & Ors. PC 19/06/05 14.2.The above line of cross examination clearly indicates that two different lines of cross examination are being adopted. First is to the effect that that witness went to the office of Sub Registrar and signed on the Will being junior to petitioner to oblige him without the knowledge of the testator. The other line is that testator executed no Will in their presence or presence of Sh Bhagchandani, advocate. In any case, it goes on to establish that the Will was duly executed and registered at the office of sub registrar. As stated earlier, the respondents no. 4B and 4C produced no evidence in defence.
14.3. In his cross examination by Sh P. K Jain, advocate, witness states that though the first petitioner was his immediate boss but they all as a team used to report to the Superintending Engineer. He testified that there are two telephone numbers in the office. He testifies that he was not aware that PW 3 Sh. Manjeet Singh was also called to attest the will. He testifies that the will was read to him. He was then sought to be suggested the following viz;
"It is incorrect that when Manjeet Singh signed the will, it was already signed by Bhagchandani........ It is incorrect that I being the junior of the petitioner, sharing same room with him Result: Petition allowed. Page 64 of 100 Jugal Kishore v State & Ors. PC 19/06/05 and working under him went to the office of Sub Registrar under his instructions alongwith Manjeet Singh and signed some papers which was already prepared there. It is incorrect that neither the testator nor Bhagchandani signed the will in my presence."
14.4.The above line of cross examination is also clearly indicating the similar line on which this witness was cross examined by the first set of objectors as that of the line of cross examination of the second set of objectors.
14.5.It would be very important to note that draft will ExPW1/A is in existence. PW 2 became vocal about it even in his cross examination dated 27.5.08 wherein the witness stated the following viz:
"The will was drafted by my father as he was himself an advocate. Vol. even a draft of this will was discovered by me from his papers and corrections were made in the draft in his hand writing."
14.6. No cross examination was ever offered by either of the cross examining counsels to this witness in regard to draft will ExPW1/A. No Result: Petition allowed. Page 65 of 100 Jugal Kishore v State & Ors. PC 19/06/05 suggestion has been ever offered to this witness or for that matter to PW 5 that the corrections in the draft will ExPW1/A are not in the hand writing of the testator. Similarly, it is not the case of the objectors that the signature on the Will ExP1 are not that of Sh Roshan Lal Puri. In these circumstances, the Will ExP1 was not only executed before the Sub Registrar but also duly registered. The presumption has not been dispelled.
14.7. I shall now come to the aspect of genuinity of the will and the suspicious circumstances as averred. The pleadings in this respect are not enumerated pointwise as they are scattered and are quite often found to be pertaining to the second set of objectors but finding mention in the affidavit of witnesses of first set. As per the objections by the first set of objectors, the Will is forged and fabricated. It was never executed as on the date of alleged execution by Sh Roshan Lal Puri who was 83 years of age and was in precarious condition since November 1994. He was unable to move, see, hear as well as understand the things till his death. He was virtually unconscious. No mention of the ailment is provided in the objections. On behalf of the first set of objectors, two witnesses were examined i.e RW 1 Dr D. P Puri (Respondent no. 2) and DW 2 Sh N K Result: Petition allowed. Page 66 of 100 Jugal Kishore v State & Ors. PC 19/06/05 Puri (Respondent no. 8). In his affidavit, DW 2 Sh N K Puri deposed on oath that Sh Roshan Lal Puri was hospitalized and undergone surgery on two occasions i.e in the year 1982 at Dhawan Nursing Home for 'strangulated hernia' and in 1985 at Khanna Nursing Home for 'phimosis'. This fact is not in his objections. DW 2 claims to be the family doctor and was treating the deceased till the time of his death for T.B and other ailments. Contrary to his objections, he deposed about his two surgeries as deposed by RW1. Further, he also deposed that 34 weeks prior to his death, Sh Roshan Lal Puri was also paralysed. This fact is also not pleaded in the objections. File reveals that objections in regard to deceased suffering from 'paralytic attack, T.B and chronic Asthma' was raised as a defence by the second set of objectors only. The second set of objectors have not lead evidence. The first set of objectors are incorporating the facts earlier not raised and the facts agitated by the second set of objectors in their affidavits and thus making major part of their affidavits as 'beyond pleadings'.
15.From the evidence that is before me, the following instances which the defence propagates as 'suspicious' can be culled out viz; A.. That the will ExP1 is undated.
Result: Petition allowed. Page 67 of 100
Jugal Kishore v State & Ors. PC 19/06/05 B. The verification clause to the probate petition arouse suspicion regarding presence of Sh Manjeet Singh before the Sub Registrar. C. The attesting witnesses did not sign at seriatum. D. Sh Manjeet Singh signed on the Will later.
E. The third attesting witness Sh Bhagchandani, advocate is not examined. F. The time of the alleged disclosure of existence of Will to the other. G. Will being left in custody of advocate Sh Bhagchandani. H. The attesting witnesses being subordinates of the beneficiary/ propounder/petitioner no. 1.
I. Non mention of mental and physical condition of the testator in the Will. J. The letter dated 6.11.94 ExPW1/B does not imply that the testator personally went to his Banker.
K. The factum of first petitioner made as nominee in the FDRs to the exclusion of others.
L. The deceased had equal love and affection towards all his children but bequeath made to their exclusion.
M. The genuineness of list of expenses ExPW1/E. N. Non mention of Jallandhar property in will ExP1 when compared to draft will ExPW1/A. Result: Petition allowed. Page 68 of 100 Jugal Kishore v State & Ors. PC 19/06/05 O. Treating doctor not examined.
P. The testator could not ambulate; was paralysed and was captive in the hands of the first petitioner; was a case of terminal illness affecting his sound disposition capacity.
16.Infact, these are the points that had been argued for and against.
17. Before proceeding further, I must deal with the primary document in this case i.e ExP1. Regardless of any comment upon its genuineness at this stage of judgment, the mind set of the person while executing it in the presence of a draft will is a very important factor to be noted. I may say that the draft will ExPW1/A has not been tested in the cross examination of witnesses of petitioners. I may also say that no challenge to it is found in the evidence. It is as if the defence accepted its introduction with both hands without any protest or demur.
18.I shall first comment on the physical appearance of the document ExPW1/A i.e draft will. Following points are noted viz;
(a). It is undated.
(b). ExPW1/A is a document prepared on a typewriter.
(c). Its para 1, 2 & 3 are same as that of para 1, 2 & 3 of original will ExP1 Result: Petition allowed. Page 69 of 100 Jugal Kishore v State & Ors. PC 19/06/05
(d). It is a laminated document.
(e). It has several hand written corrections which appear to be made over a considerable period of time with the use of fountain pen of different inks resulting into blotting.
19.Following corrections are noted in Will ExP1, viz; a. It is undated. The print out of its contents is taken either by electric typewriter or by electronic printer.
b. That its first,second and third paragraphs are same as that of draft Will ExPW1/A. c. That all the cuttings and corrections in the draft Will are incorporated in will ExP1.
d. That the second last para of draft Will ExPW1/A is not incorporated in will ExP1.
e. That it bears a photograph of the testator and his signature at point A at first page, second page and at same points on the reverse of first page. f. That the second page bears the signature of PW 4 at serial no. 1. It bears signature of PW 3 in the left bottom margin of page 2. g. It also bears signature and rubber stamp impression of Sh C.M Bhagchandani, advocate at point D. Result: Petition allowed. Page 70 of 100 Jugal Kishore v State & Ors. PC 19/06/05 h. That it also bears signature and LTI of Sh P.S Varshney on the first reverse page.
i. That it also bears LTI of testator at two points on the reverse of first page.
j. That it also bears signature and rubber stamp of Sh C.M Bhagchandani, advocate on the reverse first page.
20.Having done so, the tenor of the language used in the draft Will ExPW1/A is analyzed now. The testator consciously writes 'Advocate' after his name and gives his parentage and residential address on the Will with a declaration that he makes it in full senses of his own accord and without any pressure from any quarter to take effect after his death. 20.1 In the second paragraph, the testator declares that he has five sons and three daughters who are all married. He also names them specifically. Since he appears to be considering her widow daughter Smt. Urmila as a special case on account of her widowhood, he gives appropriate particulars of Smt. Urmila that is the month and year in which she became widow i.e May, 1989. He also gives her employment particulars i.e Railway Workshop, Chitranjan. He also specifies that she was employed there after the death of her husband.
Result: Petition allowed. Page 71 of 100
Jugal Kishore v State & Ors. PC 19/06/05 20.2. In third paragraph, he gives details of his immovable property which are under bequeath. He clarifies that he acquired it during his life time with his own resources and by raising loans of Rs.40,000/ from Punjab National Bank, built a single storey house on plot no. 31, Block B2, Janak Puri, New Delhi110058 measuring 270 sq. mtrs in the year 197071. He also specifies that loan has been since paid out from his provident fund with the said bank in which he was employed and retired in November 1971.
20.3. The forth paragraph is prequel to his bequeath. He refers to death of his wife in August 1988. He refers to be residing in the said house with Sh. Jugal Kishore who looked after him and supported him in his old age. He specifies that his four other sons are living separately with their family. The testator thereafter writes and considers certain amendments. He accordingly incorporates them. I shall comment on them a little later.
20.4.The firth paragraph consists of the bequeath. In order to avoid possible disputes which may arise at the time of his demise, he bequeaths the said house and other movables which he may acquire subsequently to his son Sh. Jugal Kishore (petitioner no.1) as the absolute owner. He also Result: Petition allowed. Page 72 of 100 Jugal Kishore v State & Ors. PC 19/06/05 bequeaths his portions in Jallandhar property, then rented out to a tenant, in favour of Sh. Jugal Kishore. He specifically excludes his other sons and daughters from any share in his estate. This para was also sought to be amended by incorporating changes. I shall refer them later. 20.5. The sixth para pertains to one room under the tenancy of his grand son Sh Rajesh Puri, the purpose of tenancy and the monthly rent. There are instructions that further payment of rent after his death will be made to Sh. Jugal Kishore Puri and his grand son cannot sublet without consent of his son. It also stipulates that in case his grand son shifts his business, he will hand over the possession to his son Sh. Jugal Kishore. It was also sought to be later amended. I shall come to it a little later. 20.6. The seventh paragraph is towards declaring the status of widow daughter Smt. Urmila as life tenant in the premises in the event of her transfer to Delhi or retirement.
20.7. The 8th paragraph is towards the reference to the testator's right to cancel or modify the Will and in case of no such cancellation or modification to treat this Will as his last and final Will. 20.8. The last paragraph is in regard to putting his signature. It is followed by due verification.
Result: Petition allowed. Page 73 of 100
Jugal Kishore v State & Ors. PC 19/06/05 The original typed portion in para 4, 5, 6, last para and the verification; the paragraph incorporating the hand writing additions/deletions; and the final incorporation of them in the original will ExP1 are incorporate below for comparative analysis:
Typed Para 4 of ExPW1/A (Draft will) .
21."My wife died in August, 1988. I am residing in the aforesaid house with my son namely Jugal Kishore, who looks after me and supports me in my old age. My other four sons are living separately with their family." Para 4 after hand written amendments 21.1."My wife died in August, 1988 after prolonged illness. She disposed off her istridhan during her life time and nothing is left to distribute to my daughters and sons. I am residing in the aforesaid house with my son namely Jugal Kishore, who looks after me and supports me in my old age. My other four sons are living separately with their family. I wish them to lead happy life with their family members." 21.2.Subsequently, the testator chose to omit the hand written phrase "without any support to me. I have no ill will against them." The portion in Italics is by way of hand written insertions.
Original Will (ExP1)
Result: Petition allowed. Page 74 of 100
Jugal Kishore v State & Ors. PC 19/06/05
21.3"My wife died in August, 1988 after prolonged illness. She disposed off her istridhan during her life time and nothing is left to distribute to my daughters and sons. I am residing in the aforesaid house with my son namely Jugal Kishore , who looks after me and supports me in my old age. My other four sons are living separately with their family. I wish them to lead happy life with their family members."
22.Thus, the testator in the final will incorporates the hand written portion also. For some reason, he omits to record that his other four sons were not providing any support to him and that he had no ill will against them. 22.1.The fifth paragraph of the will is extracted below in the same manner as the forth one was viz;
Typed Para 5 of ExPW1/A (Draft will) .
"Keeping in view possible disputes which may arise relating to inheritance opening out at the time of my demise and to save the property from unnecessary litigations, I hereby bequeath the aforesaid house and other immovables which I may acquire herein after to my son namely Sh. Jugal Kishore as absolute owner. I also bequeath my portion in House no. 820/EG, Mohalla Govind Garh, Jalandhar City consisting of the rooms and kitchen presently let out to Shri Shankar Lal to my aforesaid Result: Petition allowed. Page 75 of 100 Jugal Kishore v State & Ors. PC 19/06/05 son namely Jugal Kishore. My other sons and daughters shall have not share in my above estate."
Para 5 after hand written amendments 22.2."Keeping in view possible disputes which may arise relating to inheritance opening out at the time of my demise and to save the property from unnecessary litigations, I hereby bequeath the aforesaid house and other immovables & moveable which I may acquire herein after to my son namely Jugal Kishore and his wife Ved Kumari in consideration of the services rendered by them in my old age as absolute owner. I also bequeath my portion in House no. 820/EG,Mohalla Govind Garh, Jalandhar City consisting of the rooms and kitchen presently let out to Shri Shankar Lal to my aforesaid son namely Jugal Kishore. My other sons and daughters shall have not share in my above estate." The portion typed above in Italic is the portion which has been added by hand.
23.The remaining portion regarding the Jallandhar property was later deleted from the draft. It does not even find mention in the corresponding para of Will ExP1. It was stated at Bar by counsel for petitioners at the time of arguments that the said portion in Jalandhar property has been Result: Petition allowed. Page 76 of 100 Jugal Kishore v State & Ors. PC 19/06/05 since sold and therefore, was not part of the bequeath made by virtue of Will ExP1. This fact was not controverted and therefore, can not be amongst one of the proposed 'suspicious circumstances'. Original Will (ExP1) 23.1"Keeping in view possible disputes which may arise relating to inheritance opening out at the time of my demise and to save the property from unnecessary litigations, I hereby bequeath the aforesaid house and other immovables and movables including bank deposits and accounts which I may acquire hereinafter to my son namely Jugal Kishore and his wife Ved Kumari either or survivor in consideration of the services rendered by them in my old age, as absolute owner." The portion typed above in bold letters is the portion which was added at the time of ExP1 being typed by the typist in the Sub Registrar Office complex.
24.In sixth paragraph of ExPW1/A, the rate of rent of the room in possession of Sh Rajesh Puri as a tenant is 'Rs.500/'. The testator proposed that the same will not be let out without consent of his son Jugal Kishore. However, as he proposed to include Sh. Jugal Kishore's wife Smt. Ved Kumari (petitioner no.2) as a beneficiary, so necessary Result: Petition allowed. Page 77 of 100 Jugal Kishore v State & Ors. PC 19/06/05 changes have been made at two places besides necessary changes in the rate of rent that was actually being paid on the date of execution/registration of will i.e 'Rs.600/'.
25.In the last paragraph as well as verification para, typographical mistakes have been corrected by hand.
26.It is evident from ExPW1/A and ExP1 that the testator had been considering to execute this Will since quite some time. The draft ExPW1/A reveals that it was read number of times and therefore, corrections by different pens/inks appears to have been made at different times. This is also evident as at the time of preparation of draft ExPW1/A, the rate of rent of one room in possession of Sh Rajesh Puri was Rs.500/. Same has been substituted as Rs.600/ as it may have been increased between preparation of draft Will and execution of Will ExP1. It is also evident that at one point of time the executor only desired his properties to go in the hands of his one son Sh. Jugal Kishore. The fact that some time later he may have considered the wife of Sh. Jugal Kishore also as a beneficiary, further goes to indicate that the execution of Will ExP1 was in the mind of the testator and that he had been working on the draft Will ExPW1/A for quite some time. Further, the Result: Petition allowed. Page 78 of 100 Jugal Kishore v State & Ors. PC 19/06/05 fact that the share of the testator in Jallandhar property was no more available on the date of execution of Will 1xP1 also goes on to support the above aspect. It has not come in evidence as to when the share in Jallandhar property was sold. Had it come on record, this aspect would have been clarified. However, at least on the basis of proponderance of probabilities, the only answer to the presence of several corrections and amendments in the draft Will ExPW1/A is that its final outcome i.e ExP 1 had been a subject matter of a meticulous preparation of it by the testator which clearly reflects from its draft. I have already said that draft will ExPW1/A was not tested on the touch stone of cross examination. The contents of the draft and the original are same and further subjected to additions. It has not come on record that the respondents ever denied that hand writing by way of corrections/additions/ amendments in the draft is not that of their father/deceased Sh Roshan Lal Puri. Without challenging the above, the challenge to its final outcome ExP1 does not make sense. This leads me to the conclusion that most of the suspicious circumstances sought to be demonstrated by defence can be easily dispelled being not so. I shall take them up one by one.
Result: Petition allowed. Page 79 of 100
Jugal Kishore v State & Ors. PC 19/06/05
27. The Will ExP1 is undated but so is its draft ExPW1/A. In this respect, the evidence of PW 3 and PW 4 particularly, PW 3 is important. The witness in his cross examination submits that when he reached the office of Sub Registrar, the testator was sitting with the advocate and a typist was already typing the Will. He also states that no dictation of the will was given in his presence. According to him, typist was having a draft from which he was typing. Witness further submits that the typist was also present when the Will was signed but he did not sign the Will. He also submits that the Will was then read over and explained to the testator in the presence of both the attesting witnesses by the advocate. There is no cross examination of the witness on the aspect that the Will was not being typed in the manner as stated by him. Further, witness was never suggested that no 'draft will' was with the typist. Accordingly, even if the will is undated, the fact that it was typed in the compound of office of Sub Registrar on the date of its registration i.e. 1.12.1994, the said will being undated, can not be said to be a suspicious circumstance.
28. In regard to verification clause, ld. counsel for the petitioner Sh Ankur Mahendru, advocate has raised a genuine point. Section 281 of the Act provides the form of verification. It only requires a declaration that the Result: Petition allowed. Page 80 of 100 Jugal Kishore v State & Ors. PC 19/06/05 attesting witness was present and saw the testator affix his signature or mark or that he acknowledged the writing annexed to be his last Will and testament made by him in his presence. Thus, merely because the verification clause does not refer to presence of the second attesting witness Sh Manjeet Singh, it can not be said that Manjeet Singh was not present more particularly in view of the fact that I have already held that he was present. This fact is also evident from the cross examination of PW2, PW 3 and PW 4 as has been dealt with in the earlier part of this judgment. Besides the above, I have already pointed out that the original Will bears the signature of Sh Manjeet Singh. On the second copy of the Will retained by the office of Sub Registrar, the said Sh Manjeet Singh also signed as a witness. This fact is evident from the certified copy which is available on record. It also bears the signature of Sh Manjeet Singh. If he was not present and signed on the duplicate copy of the Will on the date of its registration itself, its certified copy would show the same. Accordingly, the above aspect does not arise any suspicion in the light of evidence.
29.It is correct that the attesting witnesses did not sign in seriatum. Sh Manjeet Singh has infact signed in the margin on the second page of the Result: Petition allowed. Page 81 of 100 Jugal Kishore v State & Ors. PC 19/06/05 will ExP1. The defence is made out that he signed later and that the signature were procured. However, said Sh Manjeet Singh as PW 3 gives an explanation in this context.
"It is incorrect that I signed on the side of the paper at point B because there was no space for my signature below the signature of Sh. Varshney as it was already signed by Bhag Chandani with his stamp. Vol. I signed in the blank space because the space below the signature of Mr. Varshane was not sufficient to write my name and address."
30.A careful perusal of the will ExP1 would show that Sh P.S Varshney left a little space below his address on the second page of the Will. Sh Manjeet Singh took as many as five lines to sign and gave his particulars with full name, parentage and address, while Sh C.M Bhagchandani, advocate had only signed and put his rubber stamp which utilized space of three lines leaving hardly any further space below his stamp. Explanation given therefore, is a prudent explanation. Not only PW 3 but Sh P.S Varshney as PW 4 also gives his own explanation in regard to above. It is recorded herein under:
"It is incorrect that when Manjeet Singh signed the will it was Result: Petition allowed. Page 82 of 100 Jugal Kishore v State & Ors. PC 19/06/05 already signed by Bhagchandani. Vol. his stamp was affixed on the paper. Due to shortage of space, he put his signature on the side of the page."
31.Accordingly, this also is not a suspicious circumstance. Accordingly, points 3 & 4 of para 12 are also not found to be suspicious circumstances in light of evidence produced.
32.So far as non examination of witness Sh Bhagchandani is concerned, law requires the propounder of the Will to prove execution of Will as well as registration by producing only one attesting witness. He has examined two. As PW 2, the first petitioner has given explanation that he never knew Sh Bhagchandani, advocate. He is not aware of his residence or his place of work. The fact remains that the signature of Sh Bhagchandani, advocate are appearing on the original Will as well as certified copy of duplicate. Therefore, non examination of Sh Bhagchandani, advocate is of no consequence. If the defence considered it appropriate to call him in support of their defence, then they were always at liberty to do so. The petitioners' were only required to prove due execution and registration of the Will. As many as two attesting witnesses have been examined by them. It can not be said to be fatal to Result: Petition allowed. Page 83 of 100 Jugal Kishore v State & Ors. PC 19/06/05 their case if they did not examine Sh Bhagchandani, advocate and thus not a suspicious circumstance.
33.Regarding the time of alleged disclosure of the existence of Will to the other LRs, there are discrepancies in pleadings and cross examination of PW 2 as well as PW 5. The discrepancies have already been pointed out earlier in this judgment. The date of cremation of the deceased has not come on record. However, time of his death has come on record. It was around 8.30 a.m to 8.45 a.m in the morning. The time has come in the testimony of PW 5. According to her, the deceased was cremated on the same date. However, she corrected her answer by saying that he was cremated on the next day as some of the relatives could not reach on the day of his death. According to defence, he was cremated on the same day as evident from the suggestion given to the witness. According to this witness, Chautha ceremony was performed on 19.12.94. However, according to PW 2, Chautha ceremony was performed on 18.12.94. It is however correct to say that Chautha ceremony could not have been performed on the date of cremation . It is in the pleadings that after the cremation, the first petitioner disclosed about the Will to the other LRs. This aspect has been more properly explained in the reply of petitioners Result: Petition allowed. Page 84 of 100 Jugal Kishore v State & Ors. PC 19/06/05 to the objections of the first set of objectors. In the said reply, it is stated by the petitioners that after returning from cremation ground, the petitioner showed the will to all the objectors. In his affidavit ExPW2/A it is sworn by PW 2 that after performance of last rites of the deceased, Will was shown to all his brothers and sisters. Similar is the stand taken by PW 5. In the cross examination of PW 2, It has come that the attesting witnesses came to attend the Chautha ceremony of the deceased and it was then that they told him about the Will of the deceased. They also told him that they were under instructions from the deceased to not to disclose about him executing any will before his death. As said earlier, Chautha ceremony was either on 18th or 19.12.94. It is further in the cross examination that after 23 days after the Chautha ceremony, PW 2 contacted Sh Bhagchandani, advocate and obtained the original Will from him. This would be either on 20th or 21.12.94. PW 2 was questioned as to when he came to know about the Will for the first time. According to the witness, he had come to know about existence of the will on 20/21.12.94. Thus, the above explanation is in tandem with the possible date on which he had come to know about the Will. Not only above, it is recorded in the Court observation that witness improved his Result: Petition allowed. Page 85 of 100 Jugal Kishore v State & Ors. PC 19/06/05 answer in the above context and clarified that it was after Chautha ceremony when presence of Will was disclosed to the family members. The use of the term 'last rites' in the affidavit of evidence would cover 'Uthala' also. Merely because, the witness had been unable to state the circumstances with clarity as to when he disclosed about the presence of Will to the others, it can not be said that the contents of his pleadings, affidavit and cross examination so far as they pertain to disclosure of the will are incorrect. It is more so as the witness has clarified the entire aspect in his cross examination dated 2.7.08, Even otherwise, the aspect looses its force in view of the fact that the same could have been a point of adjudication qua aspect of limitation but not a factor discrediting the execution of Will itself. I do not find force in the above contention.
35.According to PW 2, Sh Bhagchandani, advocate was a friend of his father. There could be other reasons for the testator to have left the Will in the custody of said advocate. Merely because the original will was left with Sh Bhagchandani, advocate, it can not be said that the same independently becomes a suspicious circumstance. For that matter, the will may have been left in his safe custody. Sh Bhagchandani, advocate could have explained this fact and the benefit of it at, if any, could have Result: Petition allowed. Page 86 of 100 Jugal Kishore v State & Ors. PC 19/06/05 been taken by the respondents to the detriment of the petitioner. So far as the petitioners are concerned, they have shown that they were not present at the time of execution and registration of the Will. No evidence to the contrary has been produced. The witness/PW 2 or PW 5 had no active participation in the execution/registration of the Will.
36.The testator has categorically made a mention of his Will as well as his mental faculties in the opening lines of the Will itself. He states that he is making the Will in his full senses and of his own accord. He also specifies that he is making the Will without pressure from any corner. He specifies that it shall take effect after his death. Accordingly, the above endorsement is sufficient to make the reader understand that witness was in a sound disposing state of mind. Contrary to the facts in Vasudev Mahadev Pranjpay's case (Supra), the Will before me itself makes a mention of the mental condition of the deceased. Thus, same by in itself, is not a suspicious circumstance. It may on the contrary point out to the fact that that the testator considered himself to be not suffering from any physical ailment of any kind, whether because of any illness or otherwise.
37.On the contrary, letter dated 6.11.94 ExPW1/5 is produced by the Result: Petition allowed. Page 87 of 100 Jugal Kishore v State & Ors. PC 19/06/05 petitioner. It is correct that it will not be necessary for the maker of the letter to have gone personally to the Bank but the fact remains that the letter also bears endorsement of the branch manager concerned which allowed the name of Sh. Jugal Kishore as nominee. The said endorsement is dated 15.11.04. It is not challenged that the petitioner was not made nominee in the FDRs of the deceased. No evidence has been produced to the contrary. Thus, on the basis of propondrance of the probability it can be said that the bearer of the letter was the presenter only. This is how the document ExPW1/B came up to be processed on the same day on presentation. The same therefore, goes to show that the testator, on 15.11.94, was capable enough to go to his bank and have his nominee changed. The same is therefore not a suspicious circumstance in the light of evidence produced.
38.Merely because the nomination was not made in favour of the other LRs of the deceased testator, it can not be said that it in itself is a suspicious circumstance. The testator in draft Will ExPW1/A had proposed incorporation of the fact that his other sons are not supporting him. Same was however not chosen to be incorporated in the original will ExP1. The wife of the deceased had died in August, 1988 after Result: Petition allowed. Page 88 of 100 Jugal Kishore v State & Ors. PC 19/06/05 prolonged illness. The tenor of the hand corrections in forth para of the Will reveals that Sh. Jugal Kishore(petitioner no.1) had been supporting him in his old age and that his other sons were living separately with their family. Perusal of para 5 of the Will states that bequeath was considered appropriate to Sh Jugal Kishore as well as his wife in consideration of services rendered by them in old age. It is already there in the Will that movable and immovable properties of the testator shall also go in favour of the beneficiaries including his bank deposits and accounts. I have already pointed out that the circumstances indicate that the Will ExP1 was in making since quite some time by virtue of its draft ExPW1/A. Thus, the factum of making one of the beneficiary in the Will as nominee is not a suspicious circumstance in the facts and circumstances before me. Likewise, merely because PW 2 has admitted that the deceased had equal love and affection towards all his children is not the sole ground to say that the bequeath made to their exclusion is in itself a suspicious circumstance in this case. Will explained the reason for such exclusion. The Will is intended to alter the natural course of inheritance. The bequeath may seem to be unjust or unfair but it has to be in accordance with the last wish of its maker. The law cited by the Result: Petition allowed. Page 89 of 100 Jugal Kishore v State & Ors. PC 19/06/05 petitioners in Rajindra Motwani's case (Supra) has been aptly relied.
39.So far as the list of expenses ExPW1/E is concerned, the defence pointed out that 'December 1994' is written on it in different ink. It was pointed out that the deceased was maintaining the record of purchase of even a match box and was therefore so neglected by the petitioners that he had to take care of his such small thing. It was also pointed out that had the list been genuine, it would have been a part of some compilation which would also show the details of expenses maintained by the deceased for months previous to the one in which he died i.e December 1994. It is also pointed out that the list does not show expenses incurred on registration of the Will. To my mind, these arguments are merely arguments without force. There is no cross examination of PW 2 on the above aspect. There can be several reasons for use of different ink in writing the month. One of the reason for not incorporating the expenses incurred on the registration of the Will could be to keep its execution a secret. Merely because the details of expenses for other months have not been filed, it can not be presumed in the absence of any cross examination, that the list produced is not genuine. The cost of match box indicates that it is not one match box but entire packet of match boxes. Result: Petition allowed. Page 90 of 100
Jugal Kishore v State & Ors. PC 19/06/05 Deceased was maintaining accounts even in the month when he died. It is therefore, not a suspicious circumstance in itself.
40. So far as the non mentioning of Jallandhar property in Will ExP1 is concerned, I have commented upon it in the earlier part of this judgment.
41.So far as the aspect of treating doctor not examined, it has come on record in the testimony of PW 2 that he was aware of surgeries of his father. The stand of the petitioners had been that the deceased was not a case of terminal illness as alleged. It has not come on record in the affidavit of said witness as to whether there was any ailment or any particular doctor, who had been treating the deceased for any of his ailment. On the contrary, it is the second respondent who claims to be treating the deceased. The said second respondent Sh D. P Puri had examined himself as RW 1. He has deposed that he had given treatment to the deceased but he was not competent to give radiological reports. It has come in his evidence that the 'sputum test' report of the deceased was in negative. He admitted that the 'Tuberculosis' is a curable disease. He submits that only lungs of the deceased were effected by T.B and no other organ. The cause of death of deceased as given by RW1 is 'Pulmonary TB' but the witness also submitted that the deceased was Result: Petition allowed. Page 91 of 100 Jugal Kishore v State & Ors. PC 19/06/05 never hospitalized for treatment of said diseases. Contrary to his evidence, DW2 stated in his cross examination that the deceased never suffered from any paralytic attack. According to him, his father was unable to move since one or two months before his death but no nurse/medical attendant was provided to him during this period. He has named one Dr. S.C Khanna as another doctor treating his father. The said doctor was examined as RW3. He could not even remember as to whether he performed any surgery upon Sh Roshan Lal Puri or not. According to RW 3, the problem of 'Hernia or Phimosis' is not a mental problem and the patient is capable to perceive what is wrong and right for him. This doctor is M.S in Surgery and therefore, more qualified than Dr. D.P Puri, who himself admitted that he is an MBBS doctor having no specialisation. The only ailment which the deceased had and which was admitted by RW2 is in regard to surgeries for Hernia and Phimosis. Same were not performed in 1994 but earlier. There is no medical record which even indicate the fact that the deceased was terminally ill on account of treatment of Tuberculosis/Ashthma or for that matter, suffered paralytic attack. The medical documents relied by RW 1 Sh N.K Puri are also not supporting their case. ExRW1/2 has not been proved Result: Petition allowed. Page 92 of 100 Jugal Kishore v State & Ors. PC 19/06/05 through its maker. More over, the same shows negative for tuberculosis. The blood examination report ExRW1/3, the X ray report ExRW1/1 and X ray film have not been proved through the concerned Radiologist/doctor. Further more, when RW2 was specifically questioned regarding the basis of diagnosis for terminal illness, witness repeatedly stated that 'deteriorating health' was the reason for terminal illness. At the same time, the witness admits that no special investigation was done in this regard and opinion of no specialist was obtained. It also does not make sense as to how the deceased remained unconscious or some times went in 'Coma' while alone at the house. No such specific circumstances have been disclosed. It has not been disclosed as to how the deceased would then recover from the alleged state of Coma without any medication or medical attendant. In view of the above, the suspicious circumstance as per serial no. 15 and 16 are not viewed to be suspicious for want of cogent evidence to the contrary. Further, proximity of time between execution of ExP1 and death of Sh Roshan Lal Puri can not be said to be suspicious circumstance in view of above.
42.Having analyzed the above, I shall dwell upon another aspect of this matter which none of the arguing counsels have referred to in regard to Result: Petition allowed. Page 93 of 100 Jugal Kishore v State & Ors. PC 19/06/05 documents produced by RW1 Sh N K Puri.
43. He has relied on letter written by him to his brother Sh Naval Kishore Puri as ExDW1/1. The letter written by him to his sister Smt. Nirmal Chopra as ExDW1/2. Two letters written to him by Smt. Nirmal Chopra as ExDW2/3 and ExDW1/4 respectively and the letters written by Sh Naval Kishore Puri as ExDW1/5 to ExDW1/8. These letters are alleged to have been created by the respondents after receipt of notice of this petition. Smt Nirmal Chopra or for that matter, Sh Naval Kishore Puri are not alive now and therefore, the letters could not be proved through them. They are sought to be proved through RW1 who submits that he is identifying the signatures of said persons. It is in evidence that these letters were sent by ordinary post. It has not been disclosed as to how RW1 Sh N. K Puri came into possession of the original letters ExDW1/1 and ExDW1/2 which he must have despatched to his deceased brother Sh Naval Kishore Puri and to his deceased sister Smt.Nirmal Chopra. Similar is the position in regard to letter ExDW2/3. The envelope in which RW1 received the letters ExDW1/5,ExDW1/6, ExDW1/7 and ExDW1/8 have not been produced and as to how RW 1 Result: Petition allowed. Page 94 of 100 Jugal Kishore v State & Ors. PC 19/06/05 came in possession of letter ExDW1/4 is also not disclosed. From the memo of parties, it is clear that deceased respondent no. 5 Sh Naval Kishore Puri had been a resident of Ahmedabad, Gujrat. The letter ExDW1/1 dated 24.11.94 would be therefore expected to have been sent by him by post on same day. Similarly, ExDW1/2 which is letter dated 24.11.94 is addressed to Smt Nirmal Chopra although her name is not there in the letter. This fact is however clarified from letter ExDW2/3. Smt. Nirmal Chopra had been a resident of Jallandhar City, Punjab. If it is believed that letter ExDW1/2 was posted to her on 24.11.94 by way of ordinary post, then the fact that she received it on 27.11.94 i.e within three days of its despatch does not stand to reason. It can be observed from text of ExDW1/1, ExDW1/2 as well as ExDW1/3 that the person who wrote these letters is in the habit of writing English words on top of the line which is utilized for writing in Hindi. Further, there is marked difference in the signature of Smt Nirmal Chopra appearing beneath her name on ExDW2/3 as also beneath her signature on ExDW1/4 when compared by way of ocular examination with that of the signatures appearing on her affidavit which was filed when she was alive in support Result: Petition allowed. Page 95 of 100 Jugal Kishore v State & Ors. PC 19/06/05 of her objections. Further more, in all the three letters ExDW1/1, ExDW1/2 and ExDW2/3, there is a marked similarity as the person writing these letters is urging the addressee to consider the 'letter as a telegram'. These creates doubt. Not only the above, there is also a marked difference in the manner in which the signatures are made on letters ExDW1/5, ExDW1/6, ExDW1/7 and ExDW1/8 when compared with the signature appearing on affidavit of Sh Naval Kishore Puri which he filed in support of his objections when he was alive. It is clear from the perusal of signature of Sh N. K Puri as appearing on his affidavit dated 23.5.05 that he used to sign slowly and probably with shaking hands. There is no such characteristics observed in the signature appearing on the above letters. Further more, the mode and manner of joining the curved part of the letter 'S' with the 'stroked line' beneath the signature is also apparently different. The mode and manner of writing the last letter is also different. This also creates doubt on the genuineness of the said letters. Accordingly, this Court is not inclined to give any credence to those letters.
44.In view of the discussion made above, this Court finds that the circumstances that have been apparently made to be suspicious do not Result: Petition allowed. Page 96 of 100 Jugal Kishore v State & Ors. PC 19/06/05 appear to be suspicious at all when seen in the light of evidence brought on record. In Niranjan Umeshchandra Joshi's case (Supra), the severity of the diseases with which the deceased suffered i.e 'malignancy Liposercoma (sic)' was not in dispute. It was also not disputed that the deceased was suffering from 'left ventricular failure with Ischemia heart disease' as well as 'respiratory problem'. It is also not disputed that the deceased was treated upon by one Dr. Panikar, who was student of appellant. However, in the instant case, no cogent evidence has come on record that the deceased Sh Roshan Lal Puri was suffering from 'paralytic attack, Asthma' or any other such 'disease of permanent nature'. Further more, in the present case, the Will is registered Will which was not so in the case law stated. In the instant case, it is not in doubt that the condition of mind of the testator was sound. In view of the explanation provided in the will, disposition does not appear to be not unjust or wholly unfair. On the contrary, the petitioner's counsel has rightly relied on Rajindra Motwani's case (Supra). Further, this is not a case where the propounder himself took prominent part in execution of Will. In this context also, the petitioner's reliance on Motwani's case (Supra) is well placed.
Result: Petition allowed. Page 97 of 100
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45. In Joseph Antony Lazarus's case (Supra), it was observed by Hon'ble Apex Court that the entire circumstances of the case coupled with the fact that the advocate drafting the Will was not examined, created a genuine doubt on the Will can not be applied to the present case as the circumstances of this case do prove its registration.
Similar is the position with respect to non applicability of the ratio of Pratap Singh's case (Supra).
46.The fact that the deceased Sh Roshan Lal Puri had chosen to have the witness i.e the junior colleagues of the beneficiary of the Will rather than his closed friends, is also of no consequence as the testator may not have had a wish to let his friends know about the disposition or may have refrained from making them as a witness as they were of his age only, i.e. old age. This is more so in view of the fact that Will stipulates that the testator wanted to avoid a possible litigation between his legal representatives. Thus, the ratio of Suraj Prakash's case (Supra) shall not be of any assistance to the respondents. So far as Vasudev Mahadev Pranjpay's case (Supra) is concerned, I have already pointed out that the Will in the said case was neither registered nor notarized while the Will in the case before me shows that it is made by a person who himself Result: Petition allowed. Page 98 of 100 Jugal Kishore v State & Ors. PC 19/06/05 is an advocate and was also got registered. This issue is therefore, decided in favour of the petitioners and against the respondents.
47. Issue no. 3.
Relief.
In view of the above discussion and findings as also determination on issues, the Court is of the considered opinion that the said Will ExP1 has been duly proved in accordance with law. There is no legal impediment in allowing the petition of the petitioners. However, in view of Section 222 of the Act, a probate of Will can only be granted to executor appointed under the Will. At the same time, in terms of Section 232 and 276 of the Act, letter of administration with Will annexed may be granted to the beneficiary under the Will. Similar views have been taken by our own Hon'ble High Court of Delhi in judgment titled as Raghav Sharma v State & Ors 2012 Vol. 3 AD (Delhi) 433. Thus, the petitioners who have otherwise prayed for issuance of letter of administration are held entitled for grant of letter of administration with Will annexed in respect of the properties mentioned in Schedule A annexed with the petition. The same is accordingly granted on filing of valuation and requisite Court fee and administration bond alongwith one Result: Petition allowed. Page 99 of 100 Jugal Kishore v State & Ors. PC 19/06/05 surety bond of the amount of valuation in accordance with law.
48. File be consigned to record room after due compliance.
Announced in open Court. (Manish Yaduvanshi)
Dated: 31.05.2014. ADJ06(Central)Delhi
Result: Petition allowed. Page 100 of 100