Delhi District Court
Sh. Ajudhya Prakash(Deceased Through ... vs State on 29 October, 2013
IN THE COURT OF AJAY GOEL, ADDITIONAL DISTRICT JUDGE-12
CENTRAL DISTRICT:DELHI
PC-12/13/98
In the Matter of:
Sh. Ajudhya Prakash(deceased through Sh. Madan Mohan
Malhotra who was transposed as petitioner vide order dated
30.1.01)
s/o Sh. Jugal Kishore
r/o 2271, Gali no. 69,
Nai Wala, Karol Bagh,
New Delhi.
.................. Petitioner
VERSUS
1. State
2. Delhi Development Authority ( Deleted vide order dated 13.10.03)
Through its Assistant Collector, Gr. II
INA, Vikas Sadan,
New Delhi-110023.
3. Sh. Ved Prakash s/o Sh. Jugal Kishore
r/o 1/5255, Balbir Nagar, Gali no. 8& 9
Shahdara, Delhi-32
4. Sh. Jawahar Lal s/o Sh. Jugal Kishore
r/o 2271/69, Nai Wala, Karol Bagh,
New Delhi-110055
5. Sh. Laxmi Narain s/o Sh. Jagual Kishore
r/o 2271/69, Nai Wala, Karol Bagh,
New Delhi-110055
PC-12/13/98 Page No. 1/39
6. Smt. Usha Monga w/o Sh. Vinay Kumar Monga
r/o 26, Sangam Apartments, Paschim Vihar,
New Delhi-110063
7. Smt. Nirmal Sahni Wd/o Sh. Bansi Lal Sahni(deceased through
LRs namely Sayogita Chadda and Sh. Vivek Sahani)
r/o 33 A, Ist & IInd Floor, Sector-59,
Chandigarh.
8. Smt. Shashi Kapoor w/o Raj Kumar Kapoor
r/o A-18 Anand Vihar, New Delhi
9. Sh. Madan Mohan ( transposed as petitioner vide order dated
30.1.01)
s/o Ajudhya Prakash
r/o 2271/69, Nai Wala, Karol Bagh,
New Delhi-110055
10. Sh. Virender Kumar s/o Sh. Jawahar Lal (deceased through LRs
Sh. Jawahar Lal Mal Malhotra, father
Smt. Prem Malhotra, mother
Mrs. Veenu Malhotra, wife
Ms. Tripti Malhotra, Ms. Shivangi Malhotra, daughters
Mr. Saksham Malhotra, son)
all r/o 2271/69, Nai Wala, Karol Bagh,
New Delhi-110055
11. Sh. Surinder Kumar s/o Sh. Jawahar Lal
r/o 2271/69, Nai Wala, Karol Bagh,
New Delhi-110055
12. Sh. Harish Kumar s/o Sh. Ved Prakash
r/o 1/5255, Gali no. 8 & 9, Balbir Nagar,
Shahdara, Delhi-110032
13.Sh. Dharaminder Kumar s/o Sh. Ved Prakash
r/o 1/5255, Gali no. 8 & 9, Balbir Nagar,
PC-12/13/98 Page No. 2/39
Shahdara, Delhi-110055
14.Sh. Manoj Kumar s/o Sh. Laxmi Narain
r/o 2271/69, Nai Wala, Karol Bagh,
New Delhi-11005
......Respondents.
Date of Institution: 2.6.98
Date of Assignment to this court: 30.4.13
Date of Arguments: 21.10.13
Date of Decision: 29.10.13
JUDGMENT
1. Vide this judgment, I shall conscientiously decide the present petition under section 176/278 of the Indian Succession Act, 1925 for grant of probate/letter of administration in respect of the properties of Late Sh. Jugal Kishore s/o late Sh. Lajja Ram by petitioner against the respondents. The brief facts of the case as narrated in the petition are that petitioner is the real son of the deceased late Sh. Jugal Kishore who at the time of his death was ordinarily resident of house no. 2271/69, Nai Wala, Karol Bagh, New Delhi and Will dated 18.9.95 registered on 5.2.96 was his last Will and testament. As stated at the time of his death Sh. Jugal Kishore deceased was in sound and disposing mind and was both PC-12/13/98 Page No. 3/39 physically and mentally healthy. It was stated that petitioner is the beneficiary of the Will and there is no impediment for grant of probate/letter of administration of the estate of deceased Sh. Jugal Kishore to the petitioner. Hence, it was prayed that probate/ letter of administration be granted to the petitioner under Will dated 5.2.96 with respect of immovable and movable properties mentioned in schedule-A.
2. After the petition was filed notice of the same was issued to the Collector of State to file valuation report, however valuation report was not filed despite service. Notice was also issued to respondents/near relatives of the deceased and besides that citation to the general public was issued by way of publication in the daily newspaper " National Herald" as well as by affixation in the court notice board.
3. The publication of the citation was effected in the newspaper " National Herald" on 22.9.98.
4. Reply/objections were filed on behalf of respondent no. 3, 12 and 13 wherein it was stated that in mid fifties with the joining of Smt. Gulshan wife of Sh. Ajudhiya Prakash in family, petitioner enforced one of the three commercial enterprises under his absolute control and management. Sh. Jugal Kishore as stated was left with immovable property at Mehrauli PC-12/13/98 Page No. 4/39 acquired in exchange of his inherited property in Pakistan and movable property worth Rs.1,50,000/- against Rs. 2 lakhs he had brought from Pakistan. As stated the moveable property was lagged in business and in late fiftees Sh. Jugal Kishore got the deposits of istridhan of former and present wives of Sh. Ved Prakash worth Rs. 50,000/- deposited with him as custodian and in late fifties Sh. Jugal Kishore and his family living at Mahrauli and at Chira Bazar had the custodian funds surplus and the property in probate available for less then Rs.100/- per sq. yard finalised the deal for the purchase of the property and paid rs.500/- surety deposits. It was stated that with consent of all he directed the petitioner to get the sale deed prepared in the name of Sh. Ved Prakash but the petitioner dishonestly prepared the same in his name. As stated it was noticed before the time and the deed was executed by the vendors in the name of Sh. Jugal Kishore exclusively. It was stated in sixties the marriages of daughters and sons performed by Sh. Jugal Kishore and purchase of property by wife of Sh. Jugal Kishore at Kinari Bazar support the purchase of the same by the custodian fund of wife of Sh. Ved Prakash. It was stated that in 1960-61 Sh. Ved Prakash sought the eviction of one of the premises occupied by a tenant in the property in probate and under coercion and Sh. Jugal Kishore PC-12/13/98 Page No. 5/39 allowed it to be occupied by the petitioner which caused Sh. Ved Prakash to enforce self exile on himself and lived in rental houses without demanding the custodian fund deposited with Sh. Jugal Kishore. It was stated that until his death Sh. Jugal Kishore could not make the repayment of the said custodian money of Sh. Ved Prakash. It was stated that in 1986-87 petitioner sold of the property at Mahrauli for his gains and Sh. Jugal Kishore executed the decree of disowned and disinheritance of petitioner and issued public notices and one such notice was published in Statesman dated 29.5.1987. It was stated that in June, 1991 the petitioner filed probate case of the Will of Sh. Roop Rani dated 23.4.1973 showing Sh. Jugal Kishore as witness but the same was not signed by Sh. Jugal Kishore and the said petition was filed without pleading Sh. Ved Prakash and his sisters as relations. As stated the objection/challenge by late Sh. Jugal Kishore with the deposition of Parkhati caused the amendment of the petitioner but Sh. Jugal Kishore his father convinced Sh. Ved Prakash not to contest/challenge the probate with the assurances that firstly the property no. 2271, Gali no. 68, Nai Walan, Karol Bagh belonged to Smt. Veena Rani on account of her custodian funds deposited with him and secondly the property was acquired during his exile. It was stated that to honour his PC-12/13/98 Page No. 6/39 assurances Sh. Jugal Kishore filed eviction petition against his tenant Sh. M.B. Singh for the bonafide requirement of Ved Prakash under recuperation. It was stated Sh. Jugal Kishore made the testament for the property no. 2271, Gali no. 68, Naiwalan, Karol Bagh in favour of wife of Ved Prakash, and his sons on 22.4.94 i.e. half of the property in probate for the forgiveness by god for his sins of cruelty enforced by him upon wife of Sh. Ved Prakash and wished to give her surprise gift of the possession of two rooms and the testament to her. It was stated that the Will in question executed on 18.9.95 has not been registered within prescribed number of days as per the Instrument Act and hence cannot be given effect to. It was stated that Will in present petition appears to be regarding the division of inherited property of late Sh. Jugal Kishore and otherwise the schedule is not regarding the property acquired by him as custodian funds deposited with him by Smt. Vina Rani. As stated in both cases Sh. Jugal Kishore was not legally obliged to make the testments, therefore the Will in present probate is dishonest and cannot be given effect. It was accordingly prayed that the instant petition be dismissed.
5. Reply/objections to the petition was filed on behalf of respondent no. 4, 10 and 11 wherein it was stated that Will dated 5.2.96 allegedly executed by PC-12/13/98 Page No. 7/39 Sh. Jugal Kishore shows that it is dated 18.9.95 and the same is forged and fabricated. It was stated that Sh. Jugal Kishore had executed his last Will dated 22.4.1994 which was duly registered with the Sub Registrar vide which the property in question was bequeathed in favour of Smt. Prem Lal and Sh. Surinder Kumar wife and sons of Sh. Jawahar Lal, respondent no. 4 and even the property was mutated in their names by DDA on 18.6.98 and by MCD on 25.8.1998 It was stated that Sh. Jugal Kishore was suffering from various ailments besides old age as he was about 90 years of age and due to which he was mostly confined to home. It was stated that Sh. Jugal Kishore was living with Sh. Jawahar Lal and his family. It was stated that Sh. Jugal Kishore had given " Pharkhati" to Sh. Ajudhya Parkash and a notice to this effect was published in 'Statesman' newspaper on 29.5.1987 and he had also issued legal notice dated 12.10.1987 to Sh. Ajudhya Parkash calling upon him to vacate the portion in his occupation. It was stated that Smt. Roop Rani wife of Sh. Jugal Kishore and mother of Ajudhya Parkash had earlier executed a Will dated 23.9.1973 and changed the said Will by executing another Will dated 18.11.1986 because of indifferent and quarrelsome attitude of Sh. Ajudhya Parkash towards his parents and brothers. As stated both these Will were duly registered with PC-12/13/98 Page No. 8/39 the concerned Sub Registrar and probate petitions in respect of the same are also pending. It was stated that Sh. Jugal Kishore had also filed a civil suit for permanent injunction againt the petitioner Ajudhya Parkash and Sh. Madan Mohan on 30.8.91 which is still pending. As stated Sh. Jugal Kishore had also served a legal notice dated 23.2.1996 on Sh. Ajudhya Parkash calling him to vacate the premises and since he did not vacate the premises a suit for possession and recovery of damages was filed by Sh. Jugal Kishore on 2.12.96. It was stated had Sh. Jugal Kishore executed any Will in favour of petitioner then he would not have moved the applications mentioned above and would not have served any notice on petitioner for vacation of the premises in question. It was also stated that in one of the witness Sh. Manoj Kumar and P.C. Mittal, Advocates in alleged Will dated 5.2.96 earlier used to conduct cases on behalf of Jugal Kishore and subsequently Sh. Jugal Kishore engaged Sh. B.K. Chaudhary, Advocate. It was stated that son of Sh. P.C. Mittal namely Sh. S.K. Mittal started appearing for Sh. Ajudhya Parkash and Madan Mohan on demise of his father Sh. P.C. Mittal and even Manoj Kumar, Advocate used to appear many a times as proxy Cl. of Sh. S.K. Mtital in cases pending between the parties. It was stated that both the said counsel had been PC-12/13/98 Page No. 9/39 appearing against Sh. Jugal Kishore and hence in normal course of things Sh. Jugal Kishore would not have got the Will drafted from the advocates of his adversaries. It was also stated that as alleged by the petitioner at the time of execution of alleged Will Sh. Jugal Kishore was staying at Karol Bagh, however the alleged Will was got registered at Seelampur whereas in normal course of business the Will could have been got registered at Kashmere Gate or at Asaf Ali Road, New Delhi. As stated in the alleged Will the portion in occupation of Sh. M.B Singh had been allegedly given to Sh. Mandan Mohan but it is a matter of fact that Sh. Jugal Kishore had filed a suit against Sh. M.B. Singh and after demise of later Sh. Jugal Kishore got the keys of the premises in occupation of Sh. M.B Singh and therefore Sh. Jugal Kishore was in possession and Sh. M.B Singh was not in possession of any premises on the date of execution of the alleged Will and it was M/s N.N. & Company who was tenant in the premises under a written agreement executed by Sh. Jugal Kishore. It was also stated that the signatures and thumb impression in the alleged Will are not of Sh. Jugal Kishore and were forged and fabricated. It was stated that Sh. Jugal Kishore himself in replication filed by him on 30.5.1996 had denied that defendant no. 1 with his own sources gave 50% to the plaintiff to buy the PC-12/13/98 Page No. 10/39 said property and as a matter of fact nothing was contributed by the defendant no. 1, then Sh. Jugal Kishore would not have therefore stated in the alleged Will that Ajudhya Parkash provided half money for the purpose of this house. Sh. Madan Mohan as stated also filed civil suit no. 461/96 on 8.7.96 making allegations against Sh. Jugal Kishore also. Hence it clearly shows that till atleast July, 1996 the relations between Sh. Jugal Kishore and Ajudhya Parkash/Madan Mohan were strained and the question of making a Will in his favour does not arise. Rest of the contents of the petition were denied and it was prayed that the petition be dismissed.
6. Reply/objections were also filed on behalf of respondents no. 5 and 14 wherein it was stated that during his life time Sh. Jugal Kishore had disowned and disinherited Sh. Ajudhya Prakash from all his movable and immovable properties by virtue of public notice published in newspaper Statesman dated 29.5.1987, hence there is not question for Sh. Jugal Kishore for executing any Will in favour of the petitioner. It was stated that the property as mentioned in the alleged Will do not belong to the testator at any point of time and he acquired the same as custodian, hence the testator had not right, title or authority to bequeath the same in favour of any person or to execute any Will in respect of the said property which PC-12/13/98 Page No. 11/39 do not belong to him and as such no probate can be granted in respect of the said Will. It was stated that no Will was ever executed by the deceased Sh. Jugal Kishore at any point of time and question of his being in sound and disposing mind does not arise at all. Rest of the contents were denied and it was prayed that the present petition be dismissed.
7. Smt. Usha Mohan, respondent no. 6 was initially proceeded ex-parte but later on she moved an application u/o 9 Rule 7 CPC for setting aside of the said order, however on 31.8.07 she stated that she wants to file no objection to the present petition and while observing that since respondent no. 6 want to file no objection it would not make any difference if she remains ex-parte my Ld. Predecessor vide said order dismissed the application u/o 9 Rule 7 CPC moved on behalf of respondent no. 6.
8. Respondent no. 7 during the course of the proceedings expired and her LRs were impleaded and they adopted the reply filed on behalf of respondents no. 4,10,11.
9. Respondent. no. 8 was proceeded ex-parte vide order dated 4.203.
10. Vide order dated 20.1.01 respondent no. 9 Sh. Madan Mohan was ordered to be transposed as the petitioner in the present petition being LR and son of the petitioner as the petitioner had expired.
PC-12/13/98 Page No. 12/39
11.Separate rejoinders were filed by the petitioner to the respective objections of the objectors in which case as set out in the petition is reiterated and that of the objectors was denied.
12.Vide order dated 5.10.05 from the pleadings of parties, the following issues were framed:-
(i) Whether Sh. Jugal Kishore, son of late Sh. Lajja Ram executed the Will dated 18.9.95, registered on 5.2.96 in a sound and disposing mind, and whether it is a valid will?OPP
(ii) Whether the Will of Sh. Jugal Kishore is a forged and fabricated document as claimed by the objector?OPR
(iii) Whether the petitioner is entitled for the relief as claimed by him?
iv) Relief.
13. In evidence, petitioner produced himself as PW-1, Sh. Balbir Kumar as PW-2, Sh. H.S. Chaudhary as PW-3, Sh. Sunil Mittal, Advocate as PW-4. PW1 and 4 relied upon the Will dated 18.9.95 which was Ex. PW-4/1. PW-1 reiterated the contents of the petition whereas PW-4 deposed that the Will Ex. PW-4/1 was signed by Sh. Jugal Kishore and other person Tara Dutt in his presence as well as the same bears his signatures at point A. He also stated that the present petition was filed and attested by him and his attestation was Ex. PW-4/2. PW-2 Balbir Kumar though appeared as witness but was partly examined and his further chief was deferred and PC-12/13/98 Page No. 13/39 thereafter he did not come in the witness box. PW-3 Sh. H.S. Chaudhary from SDM office brought the peshi register for the period 9.1.96 to 7.2.96 and as per the said record deposed that Will dated 5.2.96 of Sh. J.K. Malhotra was registered in their office vide registeration no. 5048 dated 5.2.96. It was stated that office copy of the Will cannot be produced as the same was not tracable but stated that name, date and registration no. of the stamp of registration on Will mark X tallies with the particulars of registration mentioned in Peshi Register brought today. The copy of relevant entry was Ex. PW-3/A.
14.In defence, objectors produced RW-1 Sh. Virender Kumar Malhotra, RW-2 Sh. B.N. Srivastava, RW-3 Ved Prakash Malhotra. RW-1 placed reliance upon sale deed in his favour Ex. RW-1/1, certified copy of public notice Ex. RW-1/2, legal notice dated 12.10.1987 Ex. RW-1/3, certified copy of Will dated 23.9.1973 Ex. PW-1/4, certified copy of Will dated 13.11.1986 Ex. RW-1/5, judgment dated 17.11.08 Ex. RW-1/6, NOC of Sh. Jugal Kishore was Ex. Pw-1/7, objections to Will dated 23.9.1973 was Ex. RW-1/8, written statement filed by Ajudhia Prakash was Ex. RW-1/9, replication of Sh. Jugal Kishore to the said written statement Ex. PW-1/R-5, copy of compliant lodged by Sh. Jugal Kishore Ex. RW-1/10, PC-12/13/98 Page No. 14/39 application for substitution on the basis of Will dated 22.4.1994 moved by beneficiaries Ex. RW-1/11, order dated 14.7.98 Ex. RW-1/12, certified copy of Will dated 22.4.94 Ex. RW-1/13, certified copy of mutation Ex. RW-1/14 and RW-1/15,notice dated 23.3.96 Ex. RW-1/16, certified copy of the card Ex. RW-1/17, certified copy of ordersheet showing his appearance of Sh. Manoj Kumar, Advocate on behalf of Sh. S.K. Mittal, Advocate is Ex. RW-1/18, legal notice dated 24.12.90 Ex. RW-1/19, medical record pertaining to treatment and admission in hospital Ex. RW-1/20, certified copy of rent agreement Ex. RW-1/21, copy of plaint Ex. RW-1/22. RW-2 relied his report dated 27.10.10 Ex. RW-2/1, photographs Ex. RW-2/2 to Ex. RW-2/27 and negatives collectively Ex. RW-2/28.
15.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.
16. Issue no. 1,2 and 3 :- All the issues are taken up together being interconnected. Before proceeding to decide these issue I would like to discuss the relevant law and judgments on this point. Section 278 of Succession Act deals with petition for grant of letter of administration while the effect of letter of administration has been given in Section 220 of PC-12/13/98 Page No. 15/39 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.
17. 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, 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 PC-12/13/98 Page No. 16/39 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.
18.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.
19. Section 63 of the Act of 1925 has three several requirements as regards the execution of Will viz.
"(a) the testator shall sign affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
PC-12/13/98 Page No. 17/39
(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 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 PC-12/13/98 Page No. 18/39 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.
20. In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & others AIR 1959 SC 443, it has been observed as follows:
"It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern of documents. Section 67 and 68 of the Evidence Act are relevant for the purpose. Under S. 67, if a document is alleged to be signed by any person, the signatures of the said person must be proved PC-12/13/98 Page No. 19/39 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 question as to whether the will set up by the propounder is proved to be the PC-12/13/98 Page No. 20/39 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.
21. The decisive aspect is to ascertain as to whether the Will is genuine and duly executed Will of testator so as to say that it was executed by him in disposing mind out of his own free will and without any force, coercion or fraud and the petitioner was required to dispel all circumstances which are casting doubt on the execution of Will without any force, coercion or fraud.
22. The independence and exercise of the free Will is one of the attributes of PC-12/13/98 Page No. 21/39 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.
23. The intention in the Will are to be ascertained by all possible and PC-12/13/98 Page No. 22/39 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 to that intention."
PC-12/13/98 Page No. 23/39
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 provisions of the Will. PC-12/13/98 Page No. 24/39 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.
24. Now I have to see whether in the present case the above principles have been duly made out or not. Before proceeding to decide regarding the Will dated 18.9.95 propounded by the petitioner in the present petition, I would first like to deal with the objections of the respondents/objectors. There are three set of objectors in the present case i.e. firstly Sh. Ved Prakash, respondent no. 3 and his sons Harish Kumar, respondent no. 12 and Dharminder Kumar, respondent no. 13. secondly Sh. Jawahar Lal, PC-12/13/98 Page No. 25/39 respondent no. 4 and his sons Sh. Virender Kumar, respondent no. 10 and Sh. Surinder Kumar, respondent no. 11 and thirdly Sh. Laxmi Narain, respondent no. 5 and his son Sh. Manoj Kumar, respondent no. 14. Respondent no. 6 Smt. Usha Monga, respondent no. 7 Sh. Nirmal Sahni and resondent no. 8 Smt. Shashi Kapoor are daughters of deceased Jugal Kishore and out of them only respondent no. 6 gave no objection to the present petition whereas respondent no. 7 has adopted the objections of filed by respondents no. 4,10 and 11 and respondent no. 8 was proceeded ex-parte. All the three set of respondents/objectors have filed different objections to the present case. However before going into details of Will dated 18.9.95 I would like to first discuss regarding the Will dated 22.4.94 propounded by respondent no. 4, 10, 11 and 7 who have objected to the present petition. The Will dated 22.4.94 was initially marked Mark Y which as per them was executed by their father late Sh. Jugal Kishore. It is nowhere pleaded by the respondent no. 4,10,11 and 7 that any probate case was ever filed in respect of the said Will. Further only the certified copy of the said Will mark Y has been produced on record and original of the same has not seen the light of the day till date nor any witness for proving the said Will has been examined by the objectors. RW-1 even stated during PC-12/13/98 Page No. 26/39 cross examination that he did not remember if he had filed original Will dated 22.4.1994 and supplementary Will dated 9.11.96 in the office of DDA. This is the first time RW-1 stated regarding some supplementary Will dated 9.11.96 but there is no mention of any such supplementary Will in objections filed by the respondents/objectors no. 4,10,11 and 7. It is also pertinent to mention here that as per copy of said Will Mark Y and as alleged by respondents no. 4,10,11 and 7 vide Will dated 22.4.1994 the property in question devolved upon Prem Lata, V.K. Malhotra and Surinder Kumar, however as per the case of respondent no. 3,12 and 13 Will dated 22.4.1994 was in favour of wife of respondent no. 3 and his sons who are respondents no. 12 and 13. RW-3 Ved Prakash, respondent no. 3 during his cross examination stated that he had seen the Will dated 22.4.94 and the same was unregistered Will. Though RW-3 in his affidavit of evidence Ex. RW-3/A stated that the said Will was stolen by petitioner and his father, however during cross examination after seeing Will Mark Y was Ex. RW-3/R1 and it was stated by RW-3 that the said Will was not the Will which was stolen by the petitioner and his father. Even other respondents no. 5 and 14 did not utter a word regarding the said Will. The Will dated 22.4.1994 remained unproved on record and stand of the objectors PC-12/13/98 Page No. 27/39 themselves remained contradictory regarding the said Will, hence existence of any such Will itself is doubtful and the same cannot be detrimental while deciding the present petition. Accordingly the said objection of the respondents is hereby rejected. Further it is also the case of the respondents no. 4,10,11 and 7 that the property in Will stand mutated in their names by DDA on 18.6.1998 and by MCD on 25.8.98 and petitioner had not filed any objections in DDA . The said contention was rebutted by the petitioner/PW-1 who during cross examination stated that he filed the objections against the said mutation as well as filed a suit against DDA. Rather Cl. for respondents himself produced photocopy of the written statement filed by DDA in the suit filed by the petitioner which was Ex. PW-1/R-1 which clearly shows that the said mutation was objected to my the petitioner and DDA admitted sending of notice dated 22.10.03 and advised the plaintiff to seek remedy under Punjab Land Revenue Act. Even in the said document Ex. PW-1/R-1 it was clearly mentioned that DDA was not aware about the Will dated 18.9.95 registered on 5.2.96. On the one hand objectors dispute that the petitioner did not object to the DDA and MCD regarding the mutation and on the other hand produce Ex. PW-1/R-1 which rather supports the contention of the petitioner that he took all the PC-12/13/98 Page No. 28/39 steps to object to the said mutation in favour of objectors and it also strengthen the case of the petitioner since it is clear on record that the mutation in question was done without considering the case of petitioner and the Will dated 18.9.95. Accordingly the said objection raised the objectors is also of no help to their case.
25. Further the Will dated 18.9.95 Ex. RW-4/1 has been objected to by the respondents no. 4,10,11 and 7 on the ground that the testator Sh. Jugal Kishore was not in sound disposing time at the time of execution of the Will dated 18.9.1995 and it was deposed by RW-1 that Sh. Jugal Kishore suffered paralytic attack and was confined to bed in the year 1994 and medical documents collectively Mark-E were produced on record. The documents Mark E mostly are the bills of medicines, fee receipts. There are two blood reports and one urine report which do not suggest any major problem and are almost normal. There is one chest report which also suggest infection and hypertension. All the documents Mark-E are neither proved on record nor suggest any paralytic attack rather these documents are pertaining to the year 1996 and falsify the statement of RW-1 that in the year 1994 petitioner suffer paralytic attack and rather support the case of the petitioner that at the time of execution of Will Ex. PW-4/1 dated PC-12/13/98 Page No. 29/39 18.9.95 registered on 5.2.96. It is also pertinent to mention here that other objectors have not even taken the said objection. Hence, the stand of objectors regarding medical heath of the testor at the time of registeration and execution of Will Ex. PW-4/1 remained different from each other on the one hand and on the other objection take by objectiors no. 4,10,11 and 7 stand falsified as observed above whereas petitioner has categorically stated regarding the good health of the testator at the relevant time. Hence, there is nothing on record to show that the testator was not in sound disposing mind or was suffering from any disease at the time of registeration and execution of Will Ex. PW-4/1. Accordingly issue no. 1 stand proved in favour of petitioner.
26.The second objection raised by the objectors is that the father of petitioner Sh. Ajudhya Prakash had strained relationship with Sh. Jugal Kishore. It was staed that Sh. Jugal Kishore disowned the petitioner and gave Pharkhati to him vide notice dated 29.5.1987 and legal notice dated 12.10.1987. It was stated even Sh. Jugal Kishore filed suit for injunction against petitioner and his father. The said contention was denied by the petitioner. Copy of the public notice in the newspaper " The Statesman"
was marked A and the original of the same has not been produced on PC-12/13/98 Page No. 30/39 record though during cross examination RW-1 admitted that the original newspaper was with him. RW-1 even stated that the publication dated 29.5.1987 was not given in his presence nor did he remeber if notice dated 12.10.1987 was given to Sh. Ayodhya Prakash in his presence or not. Though he stated that both the said notices were served on Sh. Ayodhya Prakash but admitted that he had no document to show that the copies were served on Ayodhya Prakash. RW-1 even admitted that he did not file the Gazette notification regarding the publication in the newspaper. Hence admittedly no proof of service of said notices on Sh. Adyodhya Prakash has been placed on record whereas receipt of any such notices is specifically denied by the petitioner. Objectors have though alleged that even in replication filed in case by Jugal Kishore against Sh. Adjodhya Prakash Ex. PW-1/R-5 the factum of said notices find mention and even restrainment orders were sought vide application Ex. PW-1/R-7 against the Sh. Ajodhya Prakash but petitioner has aruged that the said factum of issuance of said notices for the first time was mentioned in the replication and not in the plaint and the said documents were filed after the death of Sh. Jugal Kishore. Perusal of Ex. PW-1/R-7 shows that though the replication was signed and verified on 30.5.96 but the same was filed on PC-12/13/98 Page No. 31/39 10.10.05 and similarly the application though was dated 28.9.95 but the same was filed on 10.10.05. Both these documents support the contention of the petitioner that the same were filed after the death of Sh. Ajoydhya Prakash which took place on 4.1.97. It was also very surprising that the said documents were prepared much prior to their filing before the court and were filed after the death of Sh. Jugal Kishore. Hence these documents cannot be kept completely out of the circle of suspicion and are not sufficient to throw away the case of the petitioner. It is also pertinent to mention here that RW-1 in his cross examination even admitted that the said suit for injunction was withdrawn by him after the death of Sh. Jugal Kishore. Even otherwise, if for the sake of arguments it is taken into consideration that said notices were issued by the Jugal Kishore himself then still the Will propounded by the petitioner in the present case is dated 18.9.95 which is much after the issuance of the notices dated 29.5.1987 and 12.10.87 and it can very much be possible that during all those years the relationship of father of petitioner and Sh. Jugal Kishore could have improved so much that he executed the Will in question. Respondents no. 4,10,11 and 7 have also alleged that wife of Jugal Kishore namely Smt. Roop Rani earlier executed a Will dated 23.9.1973 but changed the same PC-12/13/98 Page No. 32/39 vide her Will Ex. RW-1/5 dated 17.11.1986 due to the quarrelsome attitute of Sh. Ajudhia Prakash towards his parents and brothers. It was staed that probate petition filed by objector Jawahar Lal was allowed whereas petition filed by Ajudia Parkash was dismissed vide judgment Ex. RW-1/5 whereby Will dated 17.11.1986 was held to supercede Will dated 23.9.1973. Though the said contention of the objectors is correct but vide said judgment only earlier Will dated 23.9. 1973 was held to be a admitted genuine document. Though it is also correct that in Will dated 17.11.1986 Ex. RW-1/5 only Jawahar Lal and Laxmi Narain were given the estate of deceased Roop Rani and her other LRs were devoid of any right but it is correct that in the said Will Ex. RW-1/5 nowhere it was mentioned by the testator Roop Rani that she debarred Sh. Ajudia Parkash from her estate due to his quarrelsome attitute or any restrained relationship nor it is mentioned that bad relations with Sh.Ajudia Parkash she changed the earlier Will. Hence the said Will Ex. RW-1/5 is not helpful in showing any strained relationship between Jugal Kishore and father of petitioner.
27. It was also argued that the earlier also petitioner filed similar petition regarding the Will in question but the same withdrawn, Ex. PW-4/R-1 is on record which clearly shows that vide order dated 20.4.98 the said petition PC-12/13/98 Page No. 33/39 was withdrawn by the petitioner due to certain technical defects and time was also sought for filing fresh petition. Hence the said objection does not hold any water and same is accordingly rejected.
28.Now, the only point which is to be decided is Will in question dated 18.9.95 as well as its nature and execution is genuine or not. The Will Ex. PW-4/1 was signed by two attesting witnesses namely Tara Dutt and S.K. Mittal. Sh. Sunil Mittal, attesting witness was produced in the witness box as PW-4 who categorically deposed that he knew Sh. Jugal Kishore Malhotra and on receiving a call from Sh. Ajodhya Prakash son of Mr. Jugal Kisore who told him that his father wants to execute a Will, he went to the office of Sub Registrar, Seelampur. He stated that in the office of Sub Registrar, Seelam Sh. Ajodhya Prakash, Jugal Kishore Malhotra and one other person who disclosed his name as Tara Dutt were present. The Will was stated to be already prepared and he stated that he signed the Will Ex. PW-4/1 at point A. He also stated that the Will was already signed by Sh. Jugal Kishore and other person Tara Dutt and Sh. Jugal Kishore signed on the back side of first page of Will at point A and B in his presence. PW-3 also proved peshi register Ex. PW-3/A and stated that the Will was registered with Sub Registrar office. Statements of PWs remained duly PC-12/13/98 Page No. 34/39 corroborated and no dent could be created in their cross examination. Rather during cross examination it is admitted by RW-1 that he stated in affidavit that Sh. Manoj Kumar, Advocate is the same person who drafted the Will as he was associate of Sh. S.K. Mittal, Advocate who is attesting witness to the Will. By this admission RW-1 himself destroyed his case and has stregthen the case of the petitioner since this admission clearly shows that both Sh. S.K. Mittal, attesting witness and Manoj Kumar person who drafted the Will in question were known and in knowledge of RW-1. Hence veracity of PW-4 Sh. S.K. Mittal cannot be questioned. Further objection was raised to the effect that at the time of execution of Will in question the petitioner was residing at Karol Bagh and the Will was got registered at Seelampur instead of Kashmere Gate and Asaf Ali Road since there were more chances of forgery at SDM office, Seelampur as the same is heavy burdened. I disagree with the said objection firstly on the ground that it is the sweet will and wish of the testator as to where he wants to get his Will registered and secondly if any office is over burdened with work does not mean that there are chances of forgery in the said goverment office and objectors should have restrained themselves in raising such allegation against any goverment authority. Hence the said objection is also PC-12/13/98 Page No. 35/39 hereby dismissed. Next objection taken by respondents no. 4,10,11 and 7 is regarding the Will in question is that the signatures and thumb impression on the Will does not pertain to Sh. Jugal Kishore and the same were forged. For proving the same RW-2 P.N. Sirvastava, handwriting expert was examined by the objectors who vide his report Ex. RW-2/1 stated that the disputed signatures and thumb impression on the Will differ from that of admitted signatures in rent agreement Ex. RW-1/21 and sale deed RW-1/1, however during cross examination he stated that he was told by the counsel Sh. K.K. Srivastava that the thumb impression and signatures which are on registered Will Ex. RW-4/1 are disputed and the thumb impressions on the sale deed which was produced before him by Sh. K.K. Srivastava is an admitted thumb impression. He stated that the admitted signatures are on the rent agreement. It is argued on behalf of petitioner that the signatures taken by handwriting experts as admitted signatures were not admitted by petitioner and hence the comparision made from the same cannot be relied upon. I also agree with the argument advanced by the petitioner since mere comparison of two documents out of which one is produced by petitioner and another by the respondents and out of them there is no single document admitted by both parties, hence PC-12/13/98 Page No. 36/39 such comparision is of no relevance. Further RW-2 druing cross examination has also stated that hand is not a machine and hence cannot produce two letters of exactly the same size and minor variations in the sizing are its formation is due to natural variation. The sale deed pertain to year 1960 and rent agreement pertains to year 1993 whereas the Will in question is dated 18.9.95, hence there is gap of many years in between and when RW-2 himself stated that hand not being a machine cannot produce similar size letters and natural variations are possible and as already observed the comparison was not made between an admitted document and the disputed one, then the Will in question cannot be said to be forged or fabricated on this ground. Hence the said objection is also rejected. Finally the objection raised by objector Laxmi Narayan, respondent no. 5 and Sh. Manoj Kumar respondent no. 14 completely thown the stand of other set of objectors since it was pleaded by them that the property in Will in question does not belong to testator and he had no right, title or authority to bequeath the same in favour of any person or to execute any Will. If the said objection of respondents no. 5 and 14 is believed then firstly the case put forward by other objectors as well as any claim of respondents no. 5 and 14 over the properties mentioned in Will in question PC-12/13/98 Page No. 37/39 goes away and secondly, if that was the case then why till date respondents no. 5 and 14 have not taken any steps to get the Will in questioned cancelled or nullifed. Even RW-1/15 is on record whereby MCD had mutated the property in Will in favour of Sh. Jugal Kishore and it has not come on record or is averred by any of the parties that ownership of Sh. Jugal Kishore over properties in Will was ever objected to by MCD or DDA. Hence the said stand taken by responent no. 5 and 14 does not hold any water and the same is hereby rejected. The inconsistent and different stands taken by the objectors have weakened their case and when the objectors themselves are not in one line then how can they put dent in the case of the petitioner which otherwise remained strong and consistent. In view of the above, no suspicious circumstances can be attached to the Will in question and disposition made in the Will not unnatural, improbable and unfair. Rather in the Will dated 18.9.95 all his legal heirs have been given share by the testator and his estate has been distributed equally without showing any exclusivity to any particular family member. So, I held that the Will dated 18.9.95 is true and depicts real intention of executant and is genuine last will of deceased. However, perusal of Will shows that no executor was appointed hence probate cannot be granted and letter of PC-12/13/98 Page No. 38/39 administration is to be issued.
29.Relief:- In view of the above finding, the petition is allowed. Letter of administration is granted in favour of petitioner in view of last Will of the deceased dated 18.9.95 registered on 5.2.96 Ex. PW-4/1 to enable the petitioner to administer the property of deceased. It be accordingly granted after completion of required formalities in this context i.e. filing of requisite court fee, administration bond alongwith one surety bond of the amount of valuation in accordance with law. This file be consigned to record room.
Announced in the open court on (AJAY GOEL)
29.10.13 ADJ-12(Central)Delhi.
PC-12/13/98 Page No. 39/39