Delhi District Court
Sh. Yashpal Chauhan vs State (Delhi Admn) on 6 May, 2008
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IN THE COURT OF SHRI RAVINDER DUDEJA
ADDL. DISTRICT JUDGE: DELHI.
PC No. 213/2006
Date of institution : 29.09.2005
Date on which the judgment was reserved for : 22.04.2008
Sh. Yashpal Chauhan,
S/o of late Sh. B.S. Chauhan,
R/o B-323, Ground Floor,
Saraswati Vihar,
Delhi-110034 ............ Petitioner.
Versus
1. State (Delhi Admn).
2. Sh. Rajinder Kumar,
S/o late Sh. B.S. Chauhan,
R/o B-323, First Floor,
Saraswati Vihar,
Delhi-110034.
3. Sh. Arvind Kumar,
S/o late Sh. B.S. Chauhan,
R/o B-323, Ground Floor,
Saraswati Vihar,
Delhi-110034.
4. Smt. Malti.
W/o Sh. Vijay Singh Chauhan,
R/o 7/1, Ganga Sinchai Puram,
Officer's Colony, Teli Bagh,
Lucknow (U.P.)
5. Smt. Padma Singh Chauhan,
W/o Sh. Virender Singh,
R/o D-2/2243, Vasant Kunj,
Delhi-110070. ............ Respondents.
JUDGMENT
1. This is a petition under Section 276 of the Indian Succession : 2: Act for the grant of probate of Will dated 17.06.2002 of Sh. Bal Singh Chauhan. Briefly stated, the facts as stated in the petition are that Sh. Bal Singh Chauhan, father of petitioner and respondents No. 2 to 5 expired in Delhi. During his lifetime, he executed a Will dated 17.06.2002, duly registered with Sub Registrar-VI. The wife of the deceased had predeceased him. The deceased has left behind property bearing no. B-323, Saraswati Vihar, Delhi, which was allotted to him by Delhi Administration vide Perpetual Sub Lease dated 28.10.1975. By virtue of his Will, deceased has bequeathed the property upon the petitioner and respondents No. 2 & 3, as per share specified in the said Will. Petitioner came to know about the Will about a month after the death of his father where after, he obtained the certified copy of the Will and filed the petition for the probate of the same.
2. Citation was published in 'Nav Bharat Times' but no one appeared from general public to file any objection. Notice of the petition was given to the respondents. Respondent No. 5 filed her no objection. Respondent No. 2 filed written statement admitting the Will but submitted that the Will is silent about the share of the petitioner and respondents No. 2 & 3 in respect of terrace rights of second floor of the property and prayed that the terrace be equally divided between the petitioner and respondents No. 2 & 3.
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3. Petition is being contested by respondents No. 3 & 4. They filed written statement challenging the Will. They stated that the petitioner had never taken care of his father or was always maltreating him. He has executed a forged and fabricated Will. It is further stated that the deceased was aged about 80 years and was suffering from cancer as well as various old age ailments due to which, he was unable to execute the Will. It is further stated that the Will is bad in law as the same has been alleged to be attested by Sh. Sarvagya Sharma, advocate and the petition has been filed from the same chamber. It is stated that the deceased has also left behind land measuring about 30 acres and a residential house with gher in his native village Shaheedwala Grant, District Haridwar. It is also stated that the petitioner has not disclosed the Will to anybody till the filing of the petition and he wants to grab the most valuable portion of the property and deprive the daughters of late Sh. B.S. Chauhan from getting any share in the property. It is further stated that Sh. B.S. Chauhan has not bequeathed any portion of the land, beneath the constructed portion meaning thereby that the land will devlove on all the legal heirs. It is stated that the lease hold property cannot be partitioned. The respondents have also taken the objection that the property, which is subject matter of the Will, was ancestral property and not the self acquired property of the deceased and therefore, the deceased had no right to execute any Will, which is otherwise a fabricated document. It is also stated that there was no occasion for the deceased to execute the : 4: Will, giving most of the valuable portion of the property to the petitioner as the deceased was altogether been residing with respondent No. 3 and continued living with him till his death on 20.09.2002. Respondent No. 3 was all along taking care of him. The deceased had also appointed the wife of respondent No. 3 as his nominee in his bank account as he was having good relations with her.
4. Petitioner filed replication to the written statement of respondents No. 3 & 4 therein reiterating the averments stated in the petition. He has stated that most of the expenses of the treatment of his father were borne by him. The petitioner admitted that his father was suffering from cancer of shoulder and under arm and died due to Pneumonia but stated that he was having sound disposing mind throughout his ailments and executed the Will himself after understanding its contents. He has further stated that the deceased was having an account with State Bank of India and the amount of the said account was divided amongst the petitioner and respondents No. 2 & 3 on the basis of the Will as respondents No. 4 & 5 had given their no objection. It is also stated that the respondent No. 3 submitted the copy of the Will in question with MCD in the year 2003 for separation of house tax as per the Will in respect of the property in question.
5. On completion of pleadings, following issues were framed by the court:-
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i) Whether the Will dated 17.06.2002 propounded by the petitioner is the duly executed last and final Will of Sh. Bal Singh Chauhan in sound physical and disposing state of mind? OPP.
ii) Relief.
6. In his evidence, petitioner examined five witnesses. PW-1 is petitioner himself. He tendered in evidence his affidavit Exbt. P-1. In his affidavit, he has stated about the averments which he made in the petition. He has proved the death certificate of his father as Exbt. PW-
1/1.
PW-2 is Sh. Sarvagya Sharma, advocate. He is the scribe as well as one of the attesting witnesses to the Will Exbt. PW-2/1.
PW-3 is Sh. Mukesh Yadav, LDC from the office of Sub Registrar. He produced the record to prove the registration of the Will Exbt. PW-2/1.
PW-4 is Sh. Vinod Kumar Sahni from State Bank of Patiala. He produced the record regarding the saving account of the deceased.
PW-5 is Sh. Ashok Kumar, Deputy Manager from State Bank of India, Saraswati Vihar. He also produced the record regarding the : 6: account of the deceased. He proved the documents from the record as Exbt. PW-5/1 to PW-5/16.
7. In their evidence, respondents No. 2 to 4 tendered their affidavits Exbt. R2W1/A, Exbt. R3W1/A and Exbt. R4W1/A respectively in support of the pleas taken by them in their written statement.
8. Arguments have been heard from the learned advocates of the parties. My issues-wise findings are as under:- 9. ISSUE NO. 1
In order to succeed, the petitioner being the propounder, has to prove that the Will in question conforms to the requirements of Section 63 of the Indian Succession Act. The Will Exbt. PW-2/1 is a two page registered document bearing signatures of testator Sh. Bal Singh Chauhan and the two attesting witnesses Sh. O.P. Garg and Sh. Sarvagya Sharma, advocate. In order to prove the Will, petitioner has examined the second attesting witness Sh Sarvagya Sharma, advocate as PW-2 who not only is the attesting witness of the Will but has also drafted the Will. He deposed that the Will Exbt. PW-2/1 was drafted by him on the instructions of Sh. Bal Singh Chauhan and was later got registered in the office of Sub Registrar, Pitam Pura. He stated that the Will was signed by the executant at point B on each page of the Will in his presence and the other witness Sh. O.P. Garg signed at point C at : 7: page No. 2 and at the back of page No. 1 of the Will. He further deposed that the executant and the witness Sh. O.P. Garg had also put their thumb impressions along with their signatures. He stated that the Will bears his signatures at point A on page No. 2 and at the back of page No. 1. According to him, executant was in full senses and had executed the Will Exbt. PW-2/1voluntarily and had signed the Will after going through the contents of the same. In cross examination, PW-2 has clarified that the Will Exbt. PW-2/1 was first of all signed by the testator, then by the first attesting witness Sh. O.P. Garg and then by him. He stated in cross examination that the contents of the Will were explained to the executant before he signed. He further stated in cross examination that Sub Registrar also questioned the executant before getting the Will registered. He further stated that the executant was quite healthy and came of his own at the office of the Sub Registrar. Regarding his acquaintance with the deceased, he stated that the deceased was known to him being his neighbourer and had contacted him directly.
10. The onus to explain the suspicious circumstances if there are any is also on the propounder. Where circumstances give rise to the doubts, it is for the propounder to satisfy the conscience of the court. Suspicious circumstances may be as to the genuineness of the signatures of the testator, condition of the testator's mind, disposition made in the Will being unnatural, improbable or unfair in the light of the : 8: relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last Will of the testator. In taking this view, I am supported by the case of Sashi Kumar Banerjee & Ors. Vs. Subodh Kumar Banerjee, AIR 1964 SC
529.
11. The circumstances which would be regarded as suspicious, cannot be precisely defined or exhaustively enumerated. The principles long established by the wisdom of the Judges of the Highest Courts are of value for general guidance, for ultimately, whether a Will has been really executed by the testator in a sound and disposing mind is purely a question of fact which will have to be decided in each case on the circumstances disclosed and on the nature and quality of evidence adduced.
12. The learned advocate of respondents No. 3 & 4 has pointed out the following suspicious circumstances/deficiencies in the case:-
i) Property bearing No. B-323 is an ancestral property having been purchased by late Sh. Bal Singh Chauhan out of agricultural income of the ancestral property at Village Shaheed Wala Grant and was therefore not competent to execute the Will in respect of the said property.: 9:
ii) The second attesting witness Sh. O.P. Garg not produced.
No reason has been explained for not examining him in court.
iii) Sh. Sarvagya Sharma, advocate who drafted the Will cannot be termed as independent witness.
iv) The deceased was residing with respondent No. 3 till his death who was taking care of his father and therefore question of giving most valuable portion of the property to the petitioner by virtue of the Will is improbable and unnatural.
v) The deceased was suffering from cancer of shoulder and underarm due to which, he was not in a position to execute the Will.
vi) Where was the need to put two signatures by the testator on each page of the Will. Similarly, there was no need for the witnesses to put the signatures twice on the second page of the Will.
vii) The Will is of no consequence as the lease hold property cannot be partitioned as per the terms of the perpetual sub lease.
The learned counsel of respondents has argued that the petitioner has not explained the aforesaid suspicious circumstances and therefore the Will dated 17.06.2002 has not been proved to be the genuine and valid Will.
13. I will take up each of the so called suspicious circumstances raised by the advocate of respondents. It is a settled law that in the : 10 : exercise of testamentary jurisdiction, the court decides only due execution and genuineness of the Will. The question of the title of the property is not decided in these proceedings. In the case of Brij Nath De Vs. Chander Mohan Banerji, ILR 19 All 458, it has been held as under:-
"It has been contended that where an application for probate of Will is contested and it is alleged that the property dealt with by the Will was not the testator's or was not property over which testator had a power of testamentary disposal, it is the duty of the court to try an issue raising this question. All we can say is that it would be exceedingly inconvenient, if courts in this country had to try such issues. A court could never be quite sure that it had got the proper parties before it. It would be difficult always to be sure that there was no collusion in this case. It is much safer in the interests of the public that issues as to the title to property should be decided when the issue are raised in a regular suit, and not on an application for a grant of probate."
14. It is thus not open to the probate court to decide whether or not the property with which the testator has purported to deal in fact belonged to him or was an ancestral property.
15. Although Section 63 of Indian Succession Act requires that the Will has to be attested by the two witnesses, yet Section 68 of the : 11 : Evidence Act permits the execution of the Will to be proved by only one attesting witness being called. But, it is important to note that at least one witness should be in a position to prove the execution of the Will. If that attesting witness can prove the execution of the Will, law dispenses with the evidence of the other attesting witness. In the present case, the only attesting witness examined by the petitioner has been able to prove the due execution of the Will in conformity with Section 63 (c ) of the Indian Succession Act and therefore, non examination of Sh. O.P. Garg is not fatal to the present case.
16. The learned counsel of respondents has argued that there is no endorsement on the Will Exbt. PW-2/1 that it was drafted by PW-2 Sh. Sarvagya Sharma, advocate. It is also argued that the person who drafts the Will, cannot be termed as independent witness. It has come in the cross examination of PW-2 that the deceased was his neighbourer and had contacted him directly. Being a neighbourer, he became a witness to the Will. There is no legal bar that a person who drafts the Will, cannot act as an attesting witness to the Will. No previous ill-will or enmity has even been alleged. In my view, PW-2 cannot be termed as a biased witness merely because he happens to have drafted the Will of the testator.
17. Deceased has left behind three sons and two daughters. By virtue of his Will, deceased gave ground floor front portion consisting of : 12 : a drawing room, two bedrooms, toilet, kitchen and front verandah, half inside gallery and half inner courtyard and the right on the terrace of the second floor for raising construction on the one half portion towards southern portion of the property to his elder son Yashpal (petitioner). He gave first floor portion consisting of a drawing room, two bedrooms, one toilet, one kitchen and front verandah, half inside gallery with right to raise more construction of the remaining portion of the first floor to his son Rajinder Kumar (respondent No. 2). The youngest son Arvind Kumar (respondent No. 3) has been given the back portion of the ground floor consisting of two bedrooms, one toilet, one small kitchen besides entire block of garage and the entire back courtyard, half of gallery and inner courtyard with right to construct, remaining half portion towards the northern side of the second floor as per his desire. He divided all other movable and immovable properties equally in the ratio of 1/3 each amongst his three sons. He did not give any property to his daughters.
18. The whole idea behind the execution of the Will is to deviate from the normal line of succession. The testator under the law has full discretion to distribute the property to his legal heirs in the manner he likes. What strikes the court as an eccentric or an unjust or an unnatural disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and with a sound disposing and understanding mind. But once it : 13 : is established that the testator was free and had a sound disposing mind, it is no longer the duty of the court to go further to inject its own ethics. On the plain reading of the recitals of the Will Exbt. PW-2/1, it is evident that the testator has in his wisdom distributed his estate most equitably amongst his three sons. Merely because the portion of the property which goes to the share of the petitioner carries more market value than the portion which goes to the share of respondent No. 3, will not make the Will unnatural.
19. The learned counsel of respondents has argued that the deceased was not in a position to execute the Will as he was suffering fro cancer of the shoulder and underarm due to which, he could not work with his right hand and was therefore no in a position to execute the Will. It has also been argued that the mental faculties of the deceased were impaired because of his illness and therefore, the alleged Will is not a genuine Will.
20. The Will Exbt. PW-2/1 is proved to be certified copy of the registered Will. As held in Voleti Venkata Rama Rao Vs. Kasapragada Bhaskararao and others, AIR 1962 AP 29 that under Section 60 of the Registration Act, 1908, the certificate of registration is to be endorsed under the provisions of Sections 34, 35, 58 & 59. Section 60 (2) provides that such certificate shall be signed, sealed and dated by registering officer and shall then be admissible for the purpose : 14 : of proving that the document has been duly registered in the manner provided by the Act. The fact that a document has the endorsement of a certificate of registration is prima facie evidence that the requirements of the Act have been complied with and after such endorsement the burden of proving any act or omission which would invalidate the registration rests on the person who challenges the registration. It was observed that though mere registration is not itself proof of due execution of a document, the certificate endorsed by the registration officer on the document was admissible to prove that the executant was of sound mind.
21. Admittedly, the deceased was suffering from cancer but in his affidavit, petitioner has stated that his father was having sound disposing mind throughout till his death and there was no problem with his mental capabilities, even though, he was admitted at Apollo Hospital for cancer of the shoulder and underarm. According to him, his father had died due to Pneumonia. The deceased expired on 20.09.2002 while the alleged Will was executed on 17.06.2002. In cross examination, PW-1 has stated that the cancer was detected about two weeks before his death when he was admitted at Apollo Hospital. He denied the suggestion that the deceased could not work with his right hand because of cancer in his right shoulder. PW-2 in his statement has deposed that the executant was in full senses at the time of execution of the Will and had gone through the contents of the Will : 15 : before signing the same. In cross examination, he has stated that the executant was quite healthy and came of his own at the office of Sub Registrar and had executed the Will freely without any pressure. Hon'ble Delhi High Court in L.C. Lai and others Vs. State, 2002 VII AD (DELHI) 343 held that the burden of establishing sound state of mind of the testator is on the person propounding the Will, but this burden is very light because there is presumption of soundness of mind in favour of every testator. However unless there is cogent material on record to doubt his capacity to dispose, the court must go by this presumption. Admittedly, the deceased was residing with respondent No. 3. In his affidavit, respondent No. 3 has stated that he was taking care of his father during his old age while he was suffering from cancer. Therefore, all the treatment record of the deceased should be in possession of respondent No. 3. However, no record has been produced by him to prove that his father was suffering from caner even at the time when the Will was executed. No medical record has been submitted to prove that the deceased as unable to sign with his right hand or was not having sound mind because of the ailments from which he was suffering. The bare suggestions given to the witnesses that the testator was not in a position to execute the Will, are far from sufficient. There is no evidence to conclude that the deceased was not in a position to execute the Will or was not having a sound mind.
22. Another suspicious circumstance according to the learned : 16 : counsel of respondents is that Exbt. PW-2/1 bears the signatures of the testator at two places on each page. Similarly, both the attesting witnesses have signed twice at the place earmarked for their signatures on page 2 of the Will. It is argued that the presence of the signatures at two places on each page leads to suspicion that the Will has been fabricated on blank signed papers. It is also argued that it has come in the cross examination of PW-3 that in the original registered Will, some of the signatures were photostat impression while other were in ink. It is thus submitted that the Will Exbt. PW-2/1 is a suspicious document. PW-2 who drafted the Will and got it registered, was asked about the presence of two signatures on each page of the Will. His reply was that the first signature was obtained on the original document. The second set of signatures were obtained on the photocopy of the original Will. Usually, for the purpose of registration, the original document along with its photocopy are submitted. It is usual that the original signatures are again obtained on the photocopy of the original documents. It clearly explains the reasons of presence of two sets of signatures and the presence of ink signatures and the photocopied signatures on the office copy of the registered Will produced from the office of Sub Registrar.
23. The argument that the Will is of no consequence as the lease hold property cannot be partitioned under the terms of the perpetual lease deed, is without any merits as in these proceedings, the court has to decide about the execution and genuineness of the Will. : 17 :
24. The learned counsel of respondent No. 2 has argued that the Will is silent about the share of petitioner and respondents with regard to the terrace rights of second floor of property bearing No. B-323, Saraswati Vihar, Pitam Pura, Delhi and therefore, it has been prayed that the said terrace rights should be equally divided by the petitioner and the respondents. In this regard, it may be stated that the present proceedings are not for the partition of the property but for the grant of probate and therefore, in these proceedings, property cannot be partitioned by metes and bounds as has been prayed on behalf of respondent No. 2.
25. In view of my aforesaid discussion, I am of the opinion that the petitioner has been able to explain all the suspicious circumstances, pointed out by the learned counsel of respondents. The attesting witness Sh. Sarvagya Sharma, advocate (PW-2) has proved the due execution of the Will Exbt. PW-2/1. He has withstood the test of cross examination. There is no reason to disbelieve his testimony. I, therefore, hold that the Will dated 17.06.2002 is duly executed last and final Will of late Sh. Bal Singh Chauhan in sound disposing mind. Issue No. 1 is decided accordingly.
26. ISSUE NO. 2.
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Petitioner has placed on record only the certified copy of the Will. It is stated that he original Will was not in possession of respondent No. 3. In cross examination, PW-1 states that Sh. Sarvagya Sharma, advocate, who had drafted the Will, brought the Will from the office of Sub Registrar and gave it to respondent No. 3 in the presence of all the family members. PW-2 Sh. Sarvagya Sharma, advocate corroborated the petitioner by stating in cross examination that he had handed over the Will to the youngest son of Sh. Bal Singh Chauhan after 4-5 days of his death. The petitioner has proved the legal notice under Order 12 Rule 8 CPC Exbt. PW-1/3 which he gave to respondent No. 3 for production of the original Will. Respondent No. 3 did not give any reply to the notice, although, he has taken the stand that he is not having the original Will. Since the original Will is not forthcoming and nobody has been named as executor of the Will, it will not be possible to grant probate of the Will.
27. Section 237 of the Indian Succession Act provides for limited grant when the original Will is not available. When a Will has been lost, mislaid or destroyed not by any act of the testator and a copy of or draft of the Will has been preserved, probate may be granted of such copy or draft limited until the original or a properly authenticated copy is produced.
28. Since the original Will (Exbt. PW-2/1) is not forthcoming and : 19 : the certified copy (Exbt. PW-2/1) has been proved, I therefore, grant letter of administration with a copy of the Will Exbt. PW-2/1 annexed (limited till the original Will is produced) in favour of the petitioner subject to furnishing the valuation of the property by the Collector, payment of requisite court fees thereon and on furnishing administration bond with surety. File be consigned to Record Room.
( RAVINDER DUDEJA ) ADDL. DISTRICT JUDGE: DELHI.
ANNOUNCED IN THE OPEN COURT ON 06.05.2008.