Delhi District Court
Saroj Kumari vs . State & Ors. Pc No. 86/06 on 18 March, 2016
Saroj Kumari Vs. State & Ors. PC No. 86/06
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
(More than 20 Years Old Case)
PC No. 86/06
Smt. Saroj Kumari
W/o Sh. Brij Lal
R/o B13/15, Dev Nagar
Double Storey, Govt. Quarters
Karol Bagh, New Delhi - 110005. ....... Petitioner
Versus
1. The State
2. Smt. Samri Devi (deceased)
3. Sh. Banarsi Lal Pipal
R/o B2/231, Nandnagri
Delhi - 110092.
Result: Petition Allowed Page 1 of 31
Saroj Kumari Vs. State & Ors. PC No. 86/06
4. Sh. Mukesh Chand (deceased)
Through LRs :
a). Ms. Nitika
D/o late Sh. Mukesh Chand
b). Sh. Nitin Mukesh
S/o Late Sh. Mukesh Chand
c). Sh. Achin Mukesh
S/o Late Sh. Mukesh Chand
All residents of :
Flat No. 181C, Pocket - C
Mayur Vihar, Phase - II
New Delhi - 110092.
5. Sh. Mahesh Chand
R/o J1/78, DDA Flats
Kalkaji, New Delhi - 110019.
6. Sh. Anil Kumar
R/o B88, Slum Type
Qtrs. DDA Flat
Kalkaji, New Delhi.
7. Smt. Rattan Devi
Result: Petition Allowed Page 2 of 31
Saroj Kumari Vs. State & Ors. PC No. 86/06
W/o late Naval Kishore
R/o House no. 38/93B
Gopalpura, Near Police Post
Agra, UP.
8. Sh. Brij Lal
R/o 16I/324
Bapa Nagar, Pyarelal Road
Karol Bagh, New Delhi. ......Respondents
Unique case I.D No.
:02401C0005121996
Date of Institution : 25.03.1996
Date of Reserving Judgment : 17.03.2016
Date of Judgment : 18.03.2016
Petition u/s 276 of the Indian Succession Act, 1925
JUDGMENT
1. The petitioner has applied for grant of probate of the Will of her father in law namely deceased Sh. Khem Chand executed and registered on 20.09.1993 under section 276 of the Indian Succession Act, 1925 Result: Petition Allowed Page 3 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 (hereinafter called the Act).
2. The testator died on 24.01.1994 at Delhi. He made the petitioner as sole beneficiary and also his Sole Executor in respect of this Will whereby which he bequeathed his property no. 16I/324, Bapa Nagar, Pyarelal Road, Karol Bagh, New Delhi which is built up house in the area measuring about 67 sq. yds of which he claimed to be absolute and exclusive owner. According to the Will, this property was purchased and built up by the testator with his own resources and savings and thus self acquired property. The testator also gave exclusive rights to the petitioner to receive the rent of the property from the tenants and enjoy the same as per her choice and free will.
3. On filing of the petition, its notice was issued to the State, general public by way of publication in newspaper "National Herald" as well as respondents. The citation was also displayed on the notice board of the court.
4. All respondents were duly served. On 12.07.96 the relation no. 3 Mukesh Chand (now deceased and whose representatives are at Sl. no. 4
(a) to (c) in the memo of parties) was proceeded exparte. Result: Petition Allowed Page 4 of 31
Saroj Kumari Vs. State & Ors. PC No. 86/06
5. Other respondents were duly served.
6. So far as relation no. 1 & 5 namely Smt. Samri Devi (now deceased and represented as respondent no. 2 in the amended memo of parties, her legal heirs already on record) and the relation no. 5 namely Sh. Anil Kumar (shown as Respondent no. 6 in the amended memo of parties) are concerned, they filed their joint objections. Mainly two objections are taken. The respondent no. 3 also filed his objections. The first objection is that the testator could not have made any bequeath of the subject property it being ancestral house of the joint Hindu family. The second objection is that the testator was suffering from Cancer of mouth and was unable to easily speak and understand in the last days of his life and he had also lost his sense of responsibility. He could not have executed this Will and therefore it is forged and fabricated. It is also provided in the objections that the testator's father had purchased the super structure of the house in 1957 in name of his son Kali Charan Piepal for Rs.450/. It was constructed from the earnings of joint family members. The testator's father had purchased another house in Inder Puri. The family of testator occupied the house at Bapa Nagar while the younger brother Result: Petition Allowed Page 5 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 of testator occupied Inder Puri house as per family settlement. It is submitted that petitioner's husband trespassed the house of objectors due to which proceedings under section 145 of CrPC were initiated.
7. Replication and rejoinder was filed. It is in denial of all the averments. It is denied that the subject property was ancestral. It is also denied being irrelevant that the testator was suffering from Cancer and unable to execute this Will. Relation no. 2 Sh. Banarsi Lal Pipal (respondent no.
3) also filed objections. These are also based on the lines of objections taken by relation no. 1 & 5. It is observed that the objection was also taken with respect to the motives attributable to the petitioner showing that she had ill intention and eyed the property of the testator by taking undue advantage of his condition.
8. Rejoinder was filed. It is again in denial the averments made.
9. Other respondents did not file objections. The relation no. 7 Mr. Brij Lal (respondent no. 8) however, filed no objections to the grant of probate in favour of the petitioner, being her husband.
Result: Petition Allowed Page 6 of 31
Saroj Kumari Vs. State & Ors. PC No. 86/06
10.On 16.08.99, following issues were framed viz :
ISSUES :
i). Whether the Will dated 20.09.1993 propounded by the petitioner is the last Will and testament of deceased Khem Chand and whether it had been executed by him in sound disposing mind and state as a valid Will ? OPP.
ii. Relief.
11. In evidence, the petitioner examined herself as PW1 and produced the death certificate of testator Ex. PW1/1. She supported her claim and was duly cross examined. The attesting witness Sh. M. L. Kumar, Advocate was examined as PW2. He deposed that he drafted the Will as per instructions of the executor who signed in his presence where after which it was submitted for registration. He identified the signatures on Ex. PW2/A. This witness was cross examined.
12.The second attesting witness Sh. Ghanshyam Dass is PW3. He was neighbour of testator and called by him for execution and registration of Will. He signed the Will before the SubRegistrar as a witness in the Result: Petition Allowed Page 7 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 presence of SubRegistrar. He deposes that the testator had signed also in his presence on his Will Ex. PW2/A. This witness was cross examined.
13. Record of registration of Will is proved by PW4 Sh. Pale Ram, Record Clerk, office of SubRegistrar concerned.
14.The respondents in their evidence examined several witnesses. The deceased respondent no. 2 Smt. Samri Devi is RW1. She deposed that her husband/testator Sh. Khem Chand was suffering from Cancer and was treated at Safdarjung Hospital. One year prior to his death, he had stopped talking and eating etc. He was fed with the help of a pipe. She deposes that six months prior to his death the Cancer of his husband had burst leaving a hole on his left cheek. It is submitted that the testator was not having any sound disposing mind. The witness was cross examined accordingly.
15.The respondents examined RW2 Sh. Ram Karan, official from House Tax Department, Karol Bagh who deposed that the first assessment of house in question was made in the year 1961 in the name of testator Result: Petition Allowed Page 8 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 based on survey conducted on 31.07.1961. He deposed that there was no document on record qua ownership of the property. Survey report is Ex. RW2/1. He also deposed that on the basis of the Will, petitioner filed an application for mutation on 30.07.1994 which was effected in her name on 13.09.1995.
16.Sh. S. K. Batra, official Dena Bank is RW3 who produced record of Locker No.436A in the name of testator and his deceased wife/RW1. Copy of safe deposit vault ledger as Ex.RW3/1.
17.One Sh. Ram Tirath, Naib Court from office of SDM, Karol Bagh was examined and renumbered as RW2 who produced photocopy of proceedings under section 145 CrPC Ex. RW2/1.
18.Sh. Ganga Ram Jalia, Official PNB, Dev Nagar, New Delhi was examined as RW4 for producing saving bank records of testator but the same were already destroyed.
19.Mr. Suraj Bhan, Official of Syndicate Bank, New Delhi is RW5 who Result: Petition Allowed Page 9 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 produced record of saving bank of testator. However, the same were also destroyed.
20.The respondents examined an independent witness Sh. Puran Singh as RW6. He deposed that the testator was in good health but developed Cancer in 1993 and died in the beginning of 1994. He deposes that he had met the testator in the year 1994 when he was ill and unable to speak. The witness was cross examined.
21. In order to produce record of treatment of deceased testator, the respondents summoned Sh. Narender Pal Singh, Record Clerk from Safdarjung Hospital who was examined as RW7. Copy of his OPD patient record is Ex. RW7/1.
22.The respondents also filed affidavit of one Sh. Mahesh Chand and got him examined as RW7 on 04.05.2004 but this witness was not called back for cross examination.
23.Mr. Chander Mohan, Assistant, Delhi Doordarshan is RW8 who could not produce any record of employment of testator as it was destroyed. Result: Petition Allowed Page 10 of 31
Saroj Kumari Vs. State & Ors. PC No. 86/06
24.Sh. Mohan Lal Arora, official from Dena Bank, Karol Bagh, was again examined and numbered as RW8. He was called to produce statement of account of the testator which is Ex.PW8/1. He also deposed that the locker no. 436 A was in the name of Khem Chand and his wife Samri Devi. The witness was cross examined.
25.The respondent examined Sh. Dinesh Chand, Assistant from Ministry of Home Affairs as RW9 who produced service record of one Sh. Ghanshyam Dass Nim which is one of the witness to the attesting witness to the Will. He was called to show that he was on duty on 20.09.1993. However, since no such record was available with RW9, he was unable to state anything about it.
26.The next witness examined by the respondent is one Laxmi Narayan whose affidavit in evidence is Ex. RW10/A. During his cross examination, he was discharged as he was found to be patently telling lie. Thus, his testimony cannot be read in evidence.
27.The last witness of respondents is Sh. Anil Kumar, respondent no. 6 who Result: Petition Allowed Page 11 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 filed his affidavit Ex. RW11/A. His affidavit in evidence was tendered on 08.03.2007. Even his testimony cannot be read in evidence as the witness never appeared in the witness box after chief examination on 08.03.2007. It is recorded in order dated 26.02.2007 that one witness was present but he was not prepared for his statement. The matter was adjourned for RE. After the same, the proceedings were stayed. Subsequently, the stay was vacated. Proceedings for impleadment of legal representatives under order 22 Rule 4 CPC were conducted. The application was disposed of. The court noted this fact in its order dated 05.07.2014 and afforded opportunity for cross examination of RW11. However, subsequent development took place with respect to the above. An application was filed by the petitioner for fixing the matter for final arguments. The said application was allowed on 29.09.2015. This order has become final uptil the Apex Court. Thus testimony of RW11/respondent no. 6 cannot be read in evidence.
28.No further witness was examined. This court has heard final arguments and gone through the record carefully. My issue wise findings are as under :
Result: Petition Allowed Page 12 of 31
Saroj Kumari Vs. State & Ors. PC No. 86/06
:
29.ISSUE No. 1
Whether the Will dated 20.09.1993 propounded by the petitioner is the last Will and testament of deceased Khem Chand and whether it had been executed by him in sound disposing mind and state as a valid Will ? OPP.
The onus of this issue was upon the petitioner. Before adverting to anything else, it has been noted by this court, although not pointed out by the contesting parties, that the petition itself has not been verified by atleast one of the attesting witnesses to the Will in the manner provided in section 281 of the Act. Nevertheless, the petitioner has examined 2 out of 3 attesting witnesses in support of her case. Moreover, it is a settled law that the provision of section 281 is merely directory and not mandatory. It has been observed that the provision of section 281 being less drastic than that of order 6 Rule 15 CPC and omission to verify, or a defective verification of a petition for probate cannot have more serious effect than that of the plaint. Reliance is placed on a judgment in case titled Nand Kishore Vs. Bhagi - Kuer, AIR 1958 ALL 329 which followed the ratio of judgment in case titled Rama Sinha Vs. Murti Bai, AIR 1923 Nag 41. Thus, in view of the Result: Petition Allowed Page 13 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 fact that two attesting witnesses have been examined by the petitioner, this court is of the view that non verification of the petition in accordance of section 281 of the Act is not fatal to the petition.
30.The petitioner is the daughterinlaw of testator Mr. Khem Chand. Ex. PW2/A i.e. Will in question is a typed document bearing the photograph of the testator. It has been executed on 20.09.1993 and also registered at the office of SubRegistrar concerned on the same date. It has been signed by the testator and three other witnesses namely Mr. M. L. Kumar, Advocate/PW2. This witness also drafted this Will at the instructions of the Executor Sh. Ghanshyam Dass as other attesting witness. This person is examined as PW3. There is no requirement also and the third attesting witness Sh. Ganga Prasad has not been examined. It does not make any difference. The Will reveals that the testator is making it out of his own free will, good sense, sound disposing mind and without any coercion or pressure. He categorically deposes to be exclusive owner of the subject matter of bequeath i.e. property in question as his own purchase which was also built up by him. He refers to it as self acquired property. The witness was 70 years old on the date of Will and this fact is mentioned therein. He also mentions that he had Result: Petition Allowed Page 14 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 become weak due to old age. He also mentioned that he remained sick. He refers to the reasons for which he bequeaths his immoveable property upon his daughterinlaw. He is also conscious about the other 7 legal heirs whom he mentions by name in the Will and specifies that none of them shall have any title, claim or interest in the property bequeathed. He is also conscious that his beneficiary shall have exclusive rights to also receive the rent from the tenant in the property and will have right to have her name substituted in concerned departments. He also appoints the petitioner as sole and absolute executor of the Will. He also makes provision for the bequeath to operate in favour of legal heirs of his daughterinlaw in case she predeceased him. The Will also refers to the fact that it has been drafted by the testator's counsel Sh. M. L. Kumar, (PW2), Advocate, on his instructions and in his presence. He also mentions that the contents of Will were read over to him by his counsel after the same were finally typed. He admitted the contents as correct.
31.Thus, this Will is not just an ordinary Will but drafted legally. There is no iota of evidence before me that the beneficiary took any active part in preparation, execution and registration of the Will. Result: Petition Allowed Page 15 of 31
Saroj Kumari Vs. State & Ors. PC No. 86/06
32.The law on the subject is set out here under in order to have better preparation of evidence and the limited facts before me in deciding about the circumstances attending to execution /registration of the Will, its genuinity and the aspect of soundness of disposing power of the testator, this court shall be guided by the following law on the subject viz :
Section 63 (C) of The Indian Succession Act,1925 requires that Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator. But the law does not necessarily require that more than one witness be present at the same time, or that a particular form of attestation is necessary.
As per section 68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court, capable of giving evidence. Result: Petition Allowed Page 16 of 31
Saroj Kumari Vs. State & Ors. PC No. 86/06 It is further a settled provision of law that a court acting under the Indian Succession Act for grant of probate, acts as a court of conscience and the jurisdiction of such court is limited only to consider the genuineness of the Will and the question of title or share in the property cannot be gone into by the probate court. The probate court do not decide the question of title or of existence of property itself and any construction relating to right, title and interest to any other person is beyond the domain of the probate court. Reliance placed on 2008 (4) SCC 300 Krishan Kumar Vs. Rajinder Singh Lohra & ors. It is further pertinent to point out that for obtaining the probate the petitioner is not only required to prove the execution of the subject Will but is also required to weed out any circumstances surrounding the subject Will which may be lead to a possible suspicion challenging the valid execution of the Will. Reliance placed on AIR 1930 PC 24 titled Vella Swamy Servai Vs. L. Shivraman Servai.
In a full bench judgment of the Hon'ble Apex Court reported in (1959) Supp. 1 SCR 426 titled H. Venkatachala Iyengar Vs. B. N. Thimmajamma, the Hon'ble Apex Court has discussed the entire Result: Petition Allowed Page 17 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 gamut of law relating to the discharge of the onus of proving the Will while dwelling into sections 45,47,67 & 68 of Indian Evidence Act, 1872 and sections 59 & 63 of the 1925 Act and observed :
"Section 63 requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signatures or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will ?
Did he understand the nature and effect of the dispositions in the Will ? Did he put his signatures to the Will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by Result: Petition Allowed Page 18 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 section 63 of the Indian Succession Act. As in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
The Hon'ble court has thus held that propounder of the Will is required to be called upon by the court to show satisfactory evidence that the propounded Will was signed by the testator and that the testator at the relevant time was in a sound and disposing state of mind and that he has understood the nature and effect of dispositions and put his signatures to the document of his own freewill. It has been further held that :
"Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
The Hon'ble Apex Court has further discussed the circumstances, Result: Petition Allowed Page 19 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 which may be termed as suspicious circumstances surrounding the Will and held that there may be circumstances where the signatures of the testator may be shaky, doubtful or the condition of testator's mind may appears to be feeble and debilitated so as to raise a legitimate doubt as to mental capacity of the testator to the extent that the dispositions made in the Will may appear to be unnatural, improbable or unfair or the Will may indicate that the same may not be result of testator's free mind or will and in as such circumstances, the onus upon the propounder is held to be comparatively heavy. The Hon'ble court has succinctly held that :
"It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
It has been further held that an active participation of the propounder or the fact that the propounder has taken a prominent part in the execution of the Will and Result: Petition Allowed Page 20 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 that he has also received substantial benefit under it, itself is generally treated as a suspicious circumstance which is required to be eliminated by the propounder by way of a clear and satisfactory evidence.
The ratio of H. Venkatachala Iyengar's case (supra) was later relied upon by the Hon'ble Apex Court in Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, AIR 1964 SC 529 and other similar cases and was finally analysed by the Hon'ble Apex Court in Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369 wherein, the Hon'ble Court has called out the various prepositions :
"1). Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2). Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of Result: Petition Allowed Page 21 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 the Court and capable of giving evidence.
3). Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
4). Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, and unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and Result: Petition Allowed Page 22 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reason, for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5). It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator.
6). If a caveator alleges fraud, undue influence, coercion, etc. in regard to the Result: Petition Allowed Page 23 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 execution of the Will, such pleas have to be proved by him but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
In Uma Devi Nambiar Vs. T. C. Sidhan, III (2004) SLT 754, the division bench of the Hon'ble Supreme court has further held that a Will is generally executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, (by itself without anything more), cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring only and the suspicious circumstance must Result: Petition Allowed Page 24 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 not be illusory or mere fantasy of the doubting mind but has to be real, germane and valid.
It has been further a settled preposition of law that mere circumstances of the deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of the Will. Reliance placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam VII (2005) SLT 423.
33.Having discussed aforesaid, the propounder of the Will under the law is required to prove the same in accordance with requirements of section 63 of the Indian Succession Act, read with section 68 of the Evidence Act, besides removing any suspicious circumstances surrounding the same. The court shall be discussing the aforesaid aspects in the light of the evidence which is come on record.
34. The only suspicious circumstances that is shown to the court by the respondents is that the deceased was suffering from mouth cancer during his last days. There is however nothing on record to establish that the Result: Petition Allowed Page 25 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 testator had lost soundness of his disposing capacity. There is nothing on record to suggest that the testator did not go to the office of Sub Registrar concerned for execution of the Will. The Will is said to be forged. However, there is no evidence to even suggest that it was not signed by either the testator or the attesting witnesses. In this context, RW1 has stated that her husband/testator was treated for Cancer in Safdarjung Hospital. He had stopped talking. In this context she has not produced any medical evidence of the witness that would show that the witness was unable to speak or travel on the date of execution of the Will.
35.The other relevant witness in this regard is Mr. Puran Singh i.e. RW6. He states that the testator was in good health but in the year 1993 he got Cancer and died in the beginning of 1994. In this context, he deposes to have met the testator in the year 1994 when he was ill and at that time he was unable to speak. This testimony is of no consequence as the witness met him in the year 1994 while Will is dated much prior to date i.e. 20.09.1993.
36.RW7 produces photocopy of medical record of the testator which is Result: Petition Allowed Page 26 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 Ex.RW7/1. A careful perusal of these documents reveal that it is card of the out patient history sheet of the testator which is dated 10.05.93. It may be in respect of Cancer but there is nothing in the entire history that the witness was unable to even ambulate as on the date of execution of the Will. The history is silent that the deceased had rendered him unable to speak at all or that the disease had affected the mental faculties of the testator. The respondents cannot draw any strength from this plea. It was incumbent upon them to have purchased sufficient material on record to show that the executor could not have executed his Will at the office of SubRegistrar as on 20.09.93.
37.The remaining witnesses are merely the record officials who are of no consequences in determination of the facts in issue. Suffice is to say that there are no pleadings with respect to any absolute enmity between the petitioner and the respondents. If at one point of time some dispute was referred to the concerned SDM who had to draw proceedings under section 145 of CrPC, it does not imply that the Will itself is the result of forgery or undue influence.
38.PW1 has successfully stood in her cross examination and nothing Result: Petition Allowed Page 27 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 detrimental to her case has come therein. Even if her father in law was brought to their residence on 16.09.93 on a cot assuming that his condition was bad and which fact is otherwise not proved, it cannot be presumed that he was unable to go to the office of the SubRegistrar concerned particularly when the petitioner made sure to prove the registration of the Will Ex. PW2/4 by calling official witness i.e. PW4. The registration of Will attaches significance. It raises the presumption of the genuineness of the document and its due execution which is rebuttable. Mere shallow challenges to its execution and registration cannot rebut such a presumption. The respondents ought to have proved that the attesting witnesses were interested witnesses.
39.There is nothing of this sort. Sh. M. L. Kumar, Advocate, was admittedly enrolled as such with the bar council of Delhi. Nothing useful has come out in his cross examination with respect to imputing any motive upon him for falsely deposing in favour of petitioner. It is the case of the respondents that the testator was unable to talk due to mouth Cancer. It is also their case that he could not have gone to the office of SubRegistrar concerned. If it is so, then it does not stand to reason as to why the respondents would suggest to PW2 that the testator was unable Result: Petition Allowed Page 28 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 to talk due to mouth cancer on the day of the execution of the Will.
40.Merely because the second attesting witness Sh. Ghanshyam Dass/PW3 was the neighbour of the testator does not imply that he will be falsely deposing about his role. He has withstood the test of cross examination without any apparent iota of any falsity in his evidence. On the contrary, he knew the testator since last 2530 years as both were residing in the same Gali. Whether or not he knew the circumstances due to which the testator died does not affect his testimony on the issue of execution and registration of the Will.
41.The next primary objection of the respondent is to the effect that the testator did not have power to make any bequeath of his immoveable property as it is ancestral house of a joint Hindu family. In this context, it would be suffice to say that a court of probate is merely a court of conscience. Its role is limited to examine the genuineness of the Will and not otherwise. I have already referred to the judgment in Krishan Kumar's case (supra). It is a settled law that a probate court cannot go into a question of title or even share in the property. It is also settled law that a probate court does not decide a question of title or of the existence Result: Petition Allowed Page 29 of 31 Saroj Kumari Vs. State & Ors. PC No. 86/06 of property itself and any construction relating to right, title and interest of any other person is beyond the domain of the probate court.
42. In view of the said law the plea with respect to whether the property in question was ancestral or self acquired property of the testator is to be brushed aside. Nevertheless, the document Ex.RW2/1 reveal that the house tax of the property was assessed way back in the year 1961 in the name of testator and nobody else. The said document is based on survey conducted on 31.07.1961. RW2 also proved that the mutation in the name of petitioner was effected on 13.09.95. Thus, I find no force in this contention for the reasons above.
43. One last argument worth making reference of is in respect of section 222 of the Act. It is claimed by the objectors that admittedly, no executor has been appointed in the alleged Will and thus no probate can be granted to the beneficiary / petitioner as per section 222 of the Act. This argument is per se neither hear nor there as on the third page of the Will, the executant appointed this petitioner as his sole and absolute Executor.
Result: Petition Allowed Page 30 of 31
Saroj Kumari Vs. State & Ors. PC No. 86/06
44.In view of the above discussion, this issue is decided in favour of the petitioner and against the respondents.
45. Relief :
In view of the findings on issue no. 1, the case of the petitioner succeeds. The petitioner has been able to make out case under section 276 of the Act for grant of probate of Will Ex. PW2/A in respect of immoveable property bearing no. 16I/324, Bapa Nagar, Pyarelal Road, Karol Bagh, New Delhi. The question of granting letters of administration under section 278 of the Act does not arise as the petitioner is also an executor under this Will.
46. Hence, the probate is accordingly granted on filing of valuation, requisite Court Fee, Administration Bond along with one surety bond of the amount of valuation in accordance with law.
47.File be consigned to Record Room after due compliance.
Announced in open Court. (Manish Yaduvanshi)
Dated: 18.03.2016 ADJ06(Central)Delhi
Result: Petition Allowed Page 31 of 31
Saroj Kumari Vs. State & Ors. PC No. 86/06
PC No. 86/06
Smt. Saroj Kumari Vs. State & Ors.
18.03.2016
At 4:00 p.m.
Present : Husband of petitioner in person.
Respondent no. 6 in person.
Vide separate judgment announced in the open court, the case of the petitioner succeeds. The petitioner has been able to make out case under section 276 of the Act for grant of probate of Will Ex. PW2/A in respect of immoveable property bearing no. 16I/324, Bapa Nagar, Pyarelal Road, Karol Bagh, New Delhi. The question of granting letters of administration under section 278 of the Act does not arise as the petitioner is also an executor under this Will.
Hence, the probate is accordingly granted on filing of valuation, requisite Court Fee, Administration Bond along with one surety bond of the amount of valuation in accordance with law.
File be consigned to Record Room after due compliance. Result: Petition Allowed Page 32 of 31