Delhi District Court
Sh. Ravi Kumar Katyal vs State on 19 August, 2013
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
(CENTRAL) DELHI.
PC-147/11
In the Matter of:
Sh. Ravi Kumar Katyal,
S/o Late Sh. Amir Chand Katyal,
R/o A1/137, Safdarjung Enclave,
New Delhi. ......Petitioner.
VERSUS
State
(Govt. of NCT of Delhi),
Delhi State, Sham Nath Marg,
Delhi-110054. ......Respondent.
Date of Institution: 17.02.2006
Date of Assignment to this court: 03.09.2012.
Date of Arguments: 14.08.2013
Date of Decision: 19.08.2013
JUDGMENT
1. This is a petition U/s 272 & 276 of the Indian Succession Act, 1925 for grant of probate/letter of administration of the registered Will of deceased Sh. Amir Chand Katyal dated 20.11.2001 filed by petitioner against the respondent. The brief facts of the case are that petitioner's father namely Late Sh. Amir Chand Katyal expired on 26.11.2005 leaving behind three sons including petitioner and one daughter and list of relation is also attached with petition having names as Sh. Vijay Kumar PC-147/11 Page No. 1/22 Katyal (Son), Sh. Vinod Kumar Katyal (Son), Sh. Ravi Kumar Katyal (son) and Ms. Veena Kumari Katyal (daughter). It was pleaded in petition that Late Sh. Amir Chand Katyal during his life time executed a registered Will dated 20.11.2001 and petitioner is the beneficiary of the Will dated 20.11.2001 duly registered with the Sub-Registrar-V, New Delhi and executed by Late Sh. Amir Chand Katyal. It was also averred that as per the Will dated 20.11.2001, the property No. A-1/137, Safdarjung Enclave, New Delhi had devolved upon the petitioner and Ms. Veena Kumari who is relation No. 4. Hence, it was prayed in the petition that probate /letter of administration in respect of the Will dated 20.11.2001 duly executed by Late Sh. Amir Chand Katyal may be granted in favour of petitioner.
2. During proceedings, citation of the petition to the general public by way of publication in the daily newspaper as well as by affixation in the court premises was issued. Notice of petition was also issued to State through Collector.
3. The publication of the citation was effected in the newspaper "The Punjab Kesari" on 03.03.2006.
4. Valuation report was also filed in the matter by SDM.
5. During proceedings, none appeared on behalf of relation No. 1 Sh. Vijay Kumar despite service, hence he was proceeded ex- parte vide order dated 24.03.2006. Thereafter relation No. 2 PC-147/11 Page No. 2/22 namely Sh. Vinod Kumar Katyal also did not appear in the matter, hence he was also proceeded ex-parte vide order dated 31.05.2006.
6. In reply to petition of petitioner, the objection was filed by relation No. 4 Ms. Veena Katyal wherein it was pleaded that Will dated 20.11.2001 propounded by the petitioner of Late Sh. Amir Chand Katyal stands cancelled and revoked by subsequent Will dated 11.04.2004 executed by Late Sh. Amir Chand Katyal and objector is intending to file a probate petition on the basis of original Will dated 11.04.2004 which is the last Will of the deceased. In objection, it was also averred that during his life time and after the alleged Will dated 20.11.2001, the deceased Sh. Amir Chand Katyal has filed complaints to police against the petitioner under his own handwritings to SHO under due acknowledgment of receipt dated 05.05.2004 and same was also dispatched through post to the KK Paul Commissioner of Police. It was also stated that petitioner has suppressed and concealed the facts of the complaints filed by the deceased against the petitioner. Hence, it was prayed that present petition is liable to be dismissed.
7. Rejoinder was filed by the petitioner to the objection of relation No. 4 in which case as set out in the petition is reiterated and that of the objectors was denied. It was stated that Will dated PC-147/11 Page No. 3/22 20.11.2001 executed by the deceased Sh. Amir Chand Katyal duly registered and witnessed by an authenticated and family known persons is the only legally, properly and validly executed Will of the deceased and alleged Will dated 11.4.2004 is not properly executed, legal or valid Will of the deceased. It was also stated that subsequent Will dated 11.4.2004 is neither registered nor is witnesses by the persons known to the deceased or the family of the deceased. It was also stated that will dated 11.4.2004 is not only an unregistered one but was not made by the testator in sound disposing state of mind and testator was sick and bed-ridden since December, 2003 and due to long illness, the testator was mentally disturbed therefore the Will dated 11.4.2004 is not executed in sound state of mind. It was further pleaded that relation No. 4 in collusion with attesting witnesses has signed the Will in 2006 at the behest of relation No. 4 after the demise of testator. It was also stated that objector had been threatening the testator that she will commit suicide and used to force him to accede to her demands and the Will set up by the objector dated 11.4.2004 is also an outcome of the threats advanced by the objector to the testator. Hence, it was prayed that objections may be dismissed and Will dated 20.11.2001 be upheld.
8. Vide order dated 18.01.2007, on the pleadings of parties, the PC-147/11 Page No. 4/22 following issues were framed:-
1) Whether Will dated 20.11.2001 propounded by the petitioner is duly executed last and final Will of Late Sh. Amir Chand Katyal in good health and sound disposing mind?OPP
2) Whether Will dated 20.11.2001 propounded by the petitioner stands cancelled and revoked by subsequent Will dated 11.04.2004 executed by Late Sh. Amir Chand Katyal as propounded by relation No. 4 ? O.P. Relation No. 4.
3) Whether the petitioner is entitled to the grant of probate/letter of administration?OPP.
4) Relief.
9. Thereafter, matter was directed to be listed for petitioner's evidence. In evidence, petitioner has produced five witnesses including himself in support of his case namely PW-1 Sh. Ravi Katyal.
10.In cross-examination, PW-1 stated that he came to know of the Will dated 20.11.2001 on the date of its execution as his father after preparing the draft in his own hand, gave it to him for typing. He also identified the handwriting of his father. He also stated that he got his father treated from AIIMS when he had fallen ill after March, 2004. He also stated that no doctor had given the certificate that his father was mentally disturbed.
11.PW-2 Sh. Sher Singh, UDC, from Sub-Registrar Office was also PC-147/11 Page No. 5/22 examined who was cross-examined regarding registered Will dated 20.11.2001.
12.PW-3 Sh. Shankar Prasad from AIIMS was also examined who brought the record pertaining to treatment of Sh. Amir Chand Katyal. He stated that he does not know what the ailment for which patient Amir Chand Katyal received the treatment. He also stated that he does not know the name of the doctor who had signed the Discharge Summary.
13.PW-4 Sh. Yashpal Mehta was also produced in witness box in support of case of the petitioner who identified his signatures at point A on the certified copy of Will Ex. PW-1/2 and he also identified the signatures of testator Sh. Amir Chand Katyal at points B1 to B6 on same. He further identified the signatures of second attesting witness Sh. R. C. Kapoor at point C on same. During cross-examination, he stated that petitioner got the Will typed but it was got typed on the instructions of Sh. Amir Chand Katyal. He also stated that Sh. Amir Chand Katyal went through the contents of Will in his presence and he took around 20 minutes to read out the contents of the Will and he did not make any correction in the Will. He further stated that Sh. Amir Chand Katyal was having good mental condition. He also stated that first of all, the Will was signed by Sh. Amir Chand Katyal and then by him and lastly by Sh. R.C. Kapoor.
PC-147/11 Page No. 6/2214.Sh. R.C. Kapoor was examined as PW-5 who identified his signatures on Ex. PW-1/2 at point C & C1 and that of testator at point B1 to B7 on same. During his cross-examination, he stated that when he reached Sub-Registrar Office, the Will was ready and he was asked to sign it. He further stated that Sh. Amir Chand Katyal signed the Will in his presence.
15.In defence, objector had led her evidence. Sh. Rakesh HC was examined as RW-1 who brought the record of Roznamcha having entry No. 33-A dated 09.03.2004 and DD No. 5-A dated 10.03.2004. In cross-examination, he stated that this complaint was handed over to SI Mukesh Kumar for investigation. He further stated that it is not in his knowledge what investigation was carried out by SI Mukesh Kumar with regard to the aforesaid complaint. He also stated that he has no personal knowledge with regard to the complaints of which, he has brought the record.
16.Thereafter, sufficient opportunities were granted to objector to conclude R.E. However objector did not examine even herself. Hence, evidence of objector was closed vide order dated 01.10.2008. Thereafter, application U/s 151 CPC was moved on behalf of objector No. 4 which was allowed vide order dated 05.05.2009 and objector was permitted to lead evidence. However, thereafter, objector No. 4 did not appear in the matter PC-147/11 Page No. 7/22 and accordingly, she was proceeded ex-parte vide order dated 02.09.2009. Thereafter, application U/o 9 Rule 7 CPC was filed on behalf of objector which was allowed vide order dated 04.03.2010. Thereafter, again several opportunities were granted for leading R.E. which was not availed nor any witness was produced in defence, hence R.E. was closed vide order dated 04.01.2013.
17.I have gone through the entire records including the pleadings, documents and the testimony of witnesses examined on record and have heard the arguments addressed by counsel. My issue- wise findings are given below:-
18. Issue No. 1. Whether Will dated 20.11.2001 propounded by the petitioner is duly executed last and final Will of Late Sh. Amir Chand Katyal in good health and sound disposing mind?OPP and Issue No. 2. Whether Will dated 20.11.2001 propounded by the petitioner stands cancelled and revoked by subsequent Will dated 11.04.2004 executed by Late Sh. Amir Chand Katyal as propounded by relation No. 4 ? O.P. Relation No. 4. and Issue No. 3. Whether the petitioner is entitled to the grant of probate/letter of administration?OPP:-
Before proceeding, to decide this issue I would like to discuss the relevant law and judgments on this point. Section 278 of PC-147/11 Page No. 8/22 Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of the Act which lays down that the grant of letter of administration entitles the administrator to all the rights belonging to intestate as effectual if the administrator had been granted at the moment after death. It is further settled preposition of law that grant of letter of administration does not create any title but is only declaratory existing in the LRs of the deceased.
Section 2(h) of the Indian Succession Act describes the Will to be a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death and as such Will is the only document, which becomes executable after the death of its executor. The person, who produces the Will before the Court or propounds the same and wants the court to rely thereupon, has to prove that:-
1) Will in question is a legal declaration of the intention of the deceased.
2) The testator, while executing the will, was in a sound and disposing state of mind.
3) The testator has executed the Will of his own free; meaning thereby that he was free from all sorts of influence coercion, PC-147/11 Page No. 9/22 fear or force when it was executed.
Reliance placed on AIR 1989 Gujarat 75(DB) titled as Vijaya Ben Vs. State. It is further a settled proposition of the law that no specific format of the Will or specific form of attestation is required. Reliance placed on AIR 1998 Madhya Pradesh 1 titled as Chandan Vs. Longa Bai."
In nutshell, the propounder of the Will is required to prove not only the ingredients discussed about but also to take away suspicious circumstances if any, surrounding the Will, to the satisfaction of the conscience of the Court. Further it is pertinent to mention that probate of a Will can be granted only where the testator appoints an executor of the Will and in terms of the Section 222, 234 & 276(e) in other cases only letters of administration with Will annexed can be given.
Section 68 of Indian Evidence Act, 1872 lays down that if a document is required by law to be attested and the attesting witness is alive and subject to the process of the court capable of giving evidence, must be called to prove its execution. Execution consists of signing a document read out, read over and understood and to go through the formalities necessary for validity for a legal act.
Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
PC-147/11 Page No. 10/22"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signatures of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
So, a document has to be proved as per the Evidence Act, particularly in terms of Chapter-V starting with Section 61 and Section 68 of Indian Evidence Act being relevant. However, in this context Section 63 of Indian Succession Act gives an exception which requires as to how a Will is to be executed and proved. Section 63 (c) of the Indian Succession Act requires atleast two attesting witnesses as a mandatory condition, the PC-147/11 Page No. 11/22 witness may be more than two but not less than two. The non- compliance with the requirement of the attestation in respect of the Will, which is otherwise valid and is perfectly enforceable document, under the provision of Section 63 Sub-Section (c) of the Indian Succession Act, 1925, renders the testamentary document, of no effect. Will is a document required by law to be attested, and if the standard of proof as envisaged by Section 68 of the Evidence Act, 1872 and Section 63(3) of the Act falls short of legal requirement, a will which is neither registered, nor proved to be attested and executed in accordance with law, cannot be taken into consideration for purpose of establishing claim of the legatee, reference can be made to Gullan Devi Vs. Mst. Punu @ Puran Devi AIR 1989 J&K 51.
In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence PC-147/11 Page No. 12/22 Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved to be in his handwriting, and for proving such a handwriting under SS. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, SS 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this Section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the ill or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the PC-147/11 Page No. 13/22 question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the deposition in the Will? Did he put his signatures to the Will knowing what is contained? State broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the India Succession Act. As in the case of proof of other document so in the case of proof of Wills it would be idle to except proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind of such matters." In this context, reference may also be made to a decision in Seth Beni Chand Vs. Smt. Kamla Kunwar and others, (1977)1 SCR 578.
The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by her in disposing mind out of her own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, PC-147/11 Page No. 14/22 coercion or fraud.
The independence and exercise of the free Will is one of the attributes of the human being and existence, subject to of- course the reasonable restrictions imposed by the civilized society in various form i.e. statutory, customary, moral, social etc. The exercise of right by an individual in the property owned by him or her is one such characteristic of the property given to its owner having considerable freedom to the extent of absolute to do whatever one wants to do with the property in question. This freedom is one of the very vital attributes of ownership of the property rather the sole most important one. In this context, the property, being subject matter of one's discretion to use, subject to the reasonable restriction has been brought into the domain of testamentary document. Thus, the Will is nothing but manifestation of the concept of ownership of property and its attributes wherein the owner of the property expresses his/ her wish to dispose off or transfer the property in favour of the entity chosen by him and that seems to be reason why no specific proforma or format of the Will is prescribed anywhere. The requirement of valid Will is that it should be the last testamentary document of the testator, made in sound disposing mind in presence of two attesting witnesses and free from any kind of force, theft or coercion etc. PC-147/11 Page No. 15/22 The intention in the Will are to be ascertained by all possible and available circumstances. In this context reference can be made to the judgment in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695, wherein it has been observed as under:
"37.-The testator's intention is collected from a consideration of the whole will and not from a part of it. If two parts of the same will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.
In Halsbury's Laws of England, 4th Edn. Vol. 50p. 239, it has been observed as under:
"Leading principle of construction- The only principle of construction which is applicable without qualification to all wills and overrides every other rule of construction, is that the Testator's intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according PC-147/11 Page No. 16/22 to that intention."
Similarly, in P. Manavala Chetty V. P. Ramanujan Chetty, it has been further held as under:
"9..... It is the obvious duty of the Court to ascertain and given effect to the true intention of the Testator and also avoid any construction of the Will which will defeat or frustrate or bring about a situation which is directly contrary to the intentions of the Testator. At the same time, it must be borne in mind that there are obvious limits to this doctrine that the court should try to ascertain and give effect to the intentions of the testator. The law requires a will to be in writing and it cannot, consistently with this doctrine, permit parol evidence or evidence of collateral circumstances to be adduced to contradict or add to or vary the contents of such a will. No evidence, however, powerful it may be, can be given in a court of construction in order to complete an incomplete Will, or project back a valid will, if the terms and conditions of the written will are useless and ineffective to amount to a valid bequest, or to prove any intention or wish of the testator not found in the Will. The testator's declaration or evidence of collateral circumstances cannot control the operation of the clear PC-147/11 Page No. 17/22 provisions of the Will. The provisions of the Succession Act referred to earlier indicate the limits of the court's power to take note of the testator's declaration and the surroundings circumstances i.e. evidence of collateral circumstances."
In case of any confusion or mix up and even otherwise, at times, the documents have to be read thread bare in between the lines so as to ascertain as to what exactly is being conveyed based upon the intentions of the writer of the document subject to the condition that sufficient indications are there in the document itself and the attending circumstances also contribute and indicates towards the particular inference cumulatively and collectively. Now I have to see whether in the present case the above principles have been duly made out or not. In the present case petitioner has based his claim on Will dated 20.11.01 Ex. PW-1/2 which is a registered Will and its registration has been proved by examination of PW-2 whereas its execution has been duly proved by the attesting witnesses PW-4 Sh. Yash Mehta and PW-5 Sh. R.C. Kapoor who have identified their signatures as well as signatures of the testatrix of the Will Ex. PW-1/2. Both the attesting witnesses have deposed that the Will Ex. PW-1/2 was signed by the testatrix in their presence voluntarily after reading the same. On the other PC-147/11 Page No. 18/22 hand respondent no. 4 has based her claim on the Will dated 11.04.2004 marked DX. During the course of the arguments, it is submitted by respondent no. 4 that during cross examination PW-1 i.e. petitioner has admitted the handwriting and signatures of his father on mark DX meaning thereby that the said Will stands admitted and the case of petitioner goes. Identifying the handwriting and signatures by the PW-1 on Will mark DX itself is not sufficient to prove the contents of the Will dated 11.04.2004. No attesting witnesses to the said Will have been examined by the respondent no.4 nor the same is a registered document and execution cannot be proved in this manner. It is also pertinent to mention here that PW-3 Sh. Shankar Prasad who was working at AIIMS had brought the medical records of deceased Amir Chand Katyal who had produced discharge summary Ex. PW-3/A of deceased which shows that deceased was treated as indoor patient w.e.f 25.3.04 to 4.4.04. The said discharge summary also shows that the deceased was unable to walk due to arthritis and even it was observed in the said certificate that due to poor comorbid cardiac condition surgery deferred. It was mentioned in the said certificate that patient had history of heart disease, bronchial asthma, renal cyst & urinary frequency and hesitancy meaning thereby the during the said period i.e. during March, April 2004 the testatrix was not in a sound medical condition PC-147/11 Page No. 19/22 due to which even surgery was deferred whereas the Will relied upon by respondent no. 4 was alleged to be executed on 11.4.04. Hence it has come on record that during the period of alleged subsequent Will dated 11.4.04 the testatrix was not in sound medical condition which casts shadow of doubt on the Will Dated 11.4.04. Further, in Will Ex PW-1/2 the estate of testatrix Sh. Amir Chand Katyal was divided equally between Sh. Ravi Katyal and Smt. Veena Kumari Katyal and it was stated that since both of them had no immovable properties and are unsettled therefore the estate of testatrix shall vest on them after his death. It has not been brought on record by the respondent no. 4 to show as to what were the changed circumstances since the year 2001 which compelled the testatrix to give whole property to respondent No. 4 by executing the Will Mark DX in the year 2004. Even otherwise as already observed, non examination of attesting witnesses, non registration of the Will mark DX and bad medical condition of testatrix during March, 2004 casts heavy doubt on the execution of the said Will and accordingly the Will dated 11.4.04 mark DX cannot be stated to be proved on record. So this Will goes. Now the moot question arises as to what is the effect of admission of petitioner of the handwriting and signatures of the deceased testatrix on the subsequent alleged Will marked DX, even PC-147/11 Page No. 20/22 though contents and execution of same are not proved. But by the said admission it has been proved that Will relied upon by the petitioner was not the last testamentary disposition of the property by testatrix which is most important ingredient while deciding whether the probate should be granted or not. Even though contents of the Will marked DX have not been proved by producing attesting witnesses still it was upon the petitioner now to dispel the circumstances wherein this Will was executed. It has also come on record that a complaint was made to the police by the deceased Sh. Amir Chand Katyal and signatures and handwriting of his father has been admitted by the petitioner on Mark DX. Though Will was required to be proved as per Section 68 of the Indian Evidence Act but complaint stands proved. Once handwriting and signatures are admitted, there is no need to prove it by any other mode. It is covered under Section 58 of the Indian Evidence Act and same is sufficient to hold that some strained relationship between deceased and petitioner came to fore. So in these circumstances it cannot be ruled out that there were changed circumstances due to which the deceased testatrix during lifetime wanted to wriggle out of the Will dated 20.11.01 and so the main ingredient that it was the last testamentary disposition of the testatrix is not proved. The respondent has rightly relied upon AIR 1994 Andhra PC-147/11 Page No. 21/22 Pradesh 284 Valluri Jaganmohini Seetharama Lakshmi and another Vs. Kopparthi Ramachandra Rao and others wherein it has been held by the division Bench of Hon'ble High Court that "When the execution of the Will is accepted then legal validity looses its significance and Section 58 of Indian Evidence Act would be available and not Section 68. So in these circumstances, even though the Will dated 20.11.01 Ex. PW-1/2 has been duly proved but it has not been proved that it was the last testamentary disposition of testator. Accordingly the probate cannot be granted in respect of Will Ex. PW-1/2 but it does not mean that Will dated 11.4.04 has been granted any validity as the real intention of the testatrix has not come on record. Mere discarding the Will dated 20.11.01 Ex. PW-1/2 does not give any right to the objector also. Even if the Will dated 11.04.2004 is ignored no relief can be granted to petitioner. These issues are decided accordingly against the petitioner as well as the objectors.
19.Relief:- In view of the above finding, instant petition is dismissed with cost. This file be consigned to record room.
Announced in the open court on (AJAY GOEL)
19.08.2013 ADJ-12(Central)Delhi.
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