Delhi District Court
Shri Bimaljeet Singh vs State on 14 May, 2012
IN THE COURT OF MS. NEELAM SINGH,
ADJ02 (SOUTH) SAKET COURT COMPLEX, NEW DELHI.
LA No. 63/2011
Unique Case ID No. 02403C0144422009
Shri Bimaljeet Singh
S/o late Dr. Charan Jeet Singh Mehdiratta
R/o K34C, S. F. S. Flats,
Saket, New Delhi110017.
...Petitioner
Versus
1. State
2. Mrs. Manveen Bishnoi
W/o Shri Surender Bishnoi, Advocate
Johri Bhawan, School Road,
Ram Ka Chauraha, District Bijnore246701 (U.P.)
3. Shri Kanwal Jeet Singh
S/o late Dr. Charan Jeet Singh Mehdiratta
Flat No. 156, Evergreen Cooperative Group Housing Society Ltd.
Plot No. 9, Sector7, PhaseI,
Dwarka, New Delhi110075
4. Mrs. Satinder Kaur
W/o late Mr. Anil Jeet Singh
(predeceased son of testator)
562/39 G.A., Ram Garh Colony,
Kanpur Road, Behind Sheela Gas Services,
P.O., L.D.A. Lucknow226005 (U.P.)
LA No. 63/2011 Page No. 1 of 50
5. Ms. Praneet Kaur
S/o late Mr. Anil Jeet Singh
562/39 G.A., Ram Garh Colony,
Kanpur Road, Behind Sheela Gas Services,
P.O., L.D.A. Lucknow226005 (U.P.)
6. Master Supreet Singh (minor)
S/o late Mr. Anil Jeet Singh
562/39 G.A., Ram Garh Colony,
Kanpur Road, Behind Sheela Gas Services,
P.O., L.D.A. Lucknow226005 (U.P.)
(through his mother / natural guardian /
next friend Smt. Satinder Kaur)
...Respondents
Petition presented on : 17.04.2009
Arguments heard on : 14.05.2012
Judgment on : 14.05.2012
PETITON UNDER SECTION 272 OF THE INDIAN
SUCCESSION ACT FOR GRANT OF PROBATE IN RESPECT
OF THE LAST WILL AND TESTAMENT DATED 04.01.2000
OF THE DECEASED MRS. RAMINDER KAUR
MEHDIRATTA, WIDOW OF LATE DR. CHARAN JEET
SINGH MEHDIRATTA.
J U D G M E N T
1. Vide this judgment I shall dispose off petition under Section 272 of The Indian Succession Act for grant of probate in respect of the LA No. 63/2011 Page No. 2 of 50 last Will and testament dated 04.01.2000 of the deceased Mrs. Raminder Kaur Mehdiratta, widow of late Dr. Charan Jeet Singh Mehdiratta.
2. It is the case of the petitioner that Will dated 04.01.2000 is the last Will and Testament of the deceased Smt. Raminder Kaur Mehdiratta, widow of late Dr. Charan Jeet Singh Mehdiratta, who died on 25.07.2008.
3. It is further submitted that petitioner is the son of the Testator of the Will and is exclusive beneficiary of the above referred Will and that the signatures of the Testator of the said Will were duly attested by Shri S. S. Madan and Shri Manmohan Singh Madan, the attesting witnesses of the said Will.
4. It is further submitted that Smt. Raminder Kaur Mehdiratta died leaving behind the property bearing no. K34C, S.F.S. Flats, Saket, New Delhi110017 along with scooter garage no. 75, BlockK, S.F.S. Flats, Saket, New Delhi110017 and there are no other properties and effects other than those specified in the Will and affidavit of the petitioner.
5. It is further submitted that the deceased left behind her the following legal heirs:
(a) Shri Bimaljeet Singh son / petitioner LA No. 63/2011 Page No. 3 of 50
(b) Mrs. Manveen Bishnoi daughter
(c) Shri Kanwal Jeet Singh son
(d) Mrs. Satinder Kaur daughterinlaw
(e) Ms. Praneet Kaur grand daughter
(f) Master Supreet Singh (minor) grand son
6. It is also submitted that no application has yet been made by anybody to any other court for a probate of the abovesaid Will or for letters of administration of the abovementioned properties. Hence, the present suit.
7. Notice of the petition was issued to the respondents. Publication was also effected in the national newspaper 'The Statesman' dated 18.05.2009. No objections were received from the general public. 'No Objection' was filed on behalf of respondent no. 2 and 3.
8. The only contesting parties are respondents no. 4, 5 and 6 who have filed their reply / written statement and the sum & substance of their reply is that the petition filed by the petitioner is false, frivolous, misconceived and is based on concocted facts and that the petitioner has taken over the portion of the respondents on the basis of forge and fabricated Will and the same is without any cause of action and is not maintainable and hence, is liable to be rejected summarily.
9. Replication has been filed thereafter by the petitioner reiterating the facts of his petition.
LA No. 63/2011 Page No. 4 of 50
10. From the pleadings of the parties, following issues were framed by the Learned Predecessor of this court vide order dated 14.01.2010:
1. Whether the deceased had validly executed the Will dated 04.01.2000?
2. Whether the petitioner is entitled to the grant of letter of administration in respect of the estate of the deceased?
3. Relief.
Thereafter, the matter was fixed for petitioner's evidence.
11. Petitioner led his evidence by way of affidavit and examined himself reiterating the facts of his case. The relevant extract of the cross examination of the petitioner (PW1) is as under:
"...We are total three brothers out of which one brother had already died prior to the death of my mother. I am unmarried. However, my late brother Shri Aniljeet Singh has two children, namely Ms. Parmeet Kaur and Mr. Supreet Singh and my other elder brother Shri Kanwaljeet Singh has two daughters namely Ms. Neha and Ms. Priyanka. Ms. Neha is married and staying in South Africa and Ms. Priyanka is unmarried and LA No. 63/2011 Page No. 5 of 50 staying in Delhi. My brother Shri Aniljeet Singh died in Lucknow. I participated in his death rites. After the death rites I along with my mother and brother came back to Delhi. However, the wife of the deceased brother and his children did not accompany us to Delhi. The entire expenses on the death of my brother were made by me with the assistance of my mother. I did not give any assurance to them of any kind. I have done as and when they requires help from the me however there is no fixed type of help provided to them from me. We had good terms with them and we use to come and go to Delhi and Lucknow at times. Vol. I also went to Lucknow on annual death anniversary.
The hand written note at the first page of Will Exhibit PW1/2 was written by my mother at point A but the same was not written in my presence. The Will of my mother Exhibit PW1/2 was found in her almirah after her death. She was not that much sick and she died due to her old age. Vol. She was in a sound health and mind when she died. It is correct that I had appointed LA No. 63/2011 Page No. 6 of 50 an attendant for my mother to look after during her old age."
"...She (attendant) use to come at about 8.309.00 am and left about 7.00 pm by that time I come from my office. I used to pay her around Rs. 3,500/ Rs. 4,000/ per month. Beside the aforesaid attendant of my mother, I kept one part time maid servant for cleaning and another servant for cooking. The washing of cloth was being done either by myself or by the attendant. I cannot describe the entire duties of the attendant. Since my mother was old she used to open the door when it bells, to pick the telephone, water, medicine etc. do all the work whatever was assigned by me or my mother. The attendant remained in our house about 2 and 2 ½ year prior to the death of my mother. Her name is Lata. She is still working in my house.
My deceased brother was ill and he was admitted in AIIMS for about 710 days. After he took discharge, he came to my house and thereafter he left to his house Lucknow. I do not remember as to how many days he LA No. 63/2011 Page No. 7 of 50 lived in Delhi at our residence after his discharge. My brother was looked after by all of us including his wife. My mother was an educated lady and she used to look after with the local authorities such as payment of bills. My mother was 89+ when she died. She used to give bills etc. or the field work to me before 34 years when she died. She used to write herself. I used to assist her last 34 years prior to her death in writing whereas she kept writing till the last day of her death. Assistance means whatever she says to write I used to write. Vol. she was much intelligent than me and I used to take advice with her. She also used to take advice from me as we were having very cordial relations. I do not know whether she used to take advice from other relatives as well or not."
"...In such circumstances, either my mother used to be with me or if she is not with me then I used to go back home and collect the same from her.
Witness no. 1 in the Will Exhibit PW1/2 is my maternal uncle (Mama). She did not discuss with me about the LA No. 63/2011 Page No. 8 of 50 Will Exhibit PW1/2. I knew about the other Will dated 19.1.1989 which was also registered and the same was registered at SubRegistrar office at Asaf Ali Road, Delhi. She did not discuss with me for the cancellation of the said registered Will. In the registered Will as well I was the beneficiary. So far as I remember I was the only beneficiary in the registered Will. The copy of the registered Will is also available at my residence and I may produce the same if asked for.
I used to assist my bhabhi (wife of deceased brother) in maintaining the account in Bank and Post office and other offices in Delhi only as she used to stay at Lucknow. She used to tell me the work and accordingly I was doing the said work. She used to send signed documents to me and I was doing the needful here at Delh. It is correct that I am having a joint account in Post Office and Bank with my bhabhi Mrs. Satinder Kaur i.e. respondent no. 4. Vol. She was having first name with the account. The account in Post office at Saket was opened after the death of my brother, LA No. 63/2011 Page No. 9 of 50 however I do not remember whether the account in the bank was opened prior or after the death of my brother. I might have deposited the amount in the account but I have never withdrawn any amount from the aforesaid account. Vol. whenever it was drawn it was drawn under her signature. She used to send signed withdrawal slip and on the basis of the same the amount was withdrawn. I might have deposited the cheque as well in the accounts. I had a joint account with my deceased mother as well. The joint account might be 10 years old at the time my mother died. I had the joint account with my mother in Oriental Bank of Commerce and Bank of India both at Saket. The purpose of opening of joint account is to help each other. I used to deposit and withdraw in the joint account which was with my mother. I used to withdraw the amount from the joint account with the signature of my mother as well as with my signature. However, I used to give priority my mother to sign the withdrawal slip. I had FDRs in joint name with my mother. My mother used to get it LA No. 63/2011 Page No. 10 of 50 prepared herself. I used to give amount to respondent no. 4 to 6 after the death of my brother but I cannot tell the number of times. The help assisted by me runs into lakhs on various occasions.
There is no difference in the contents of both the Wills. Today, I have brought original will in compliance of court order and the same is Ex. PW1/D. I have no knowledge of the execution of the said will at the time of execution of the second will. I have no knowledge about the facts as to why the first will was cancelled and second will was executed. I can not tell the exact time as to when I came to know about the previous will. At the time of execution of the Will dated 19.01.1989, the attendant Mrs. Lata was not in service. Presently, I am paying Rs. 2,500/ to Mrs. Lata for domestic help. She cooks for me. It is wrong to suggest that the present will is forged and fabricated by me for denying the legal right of respondent no. 3 to 5.
I know the names of the witnesses, Shri S.S. Madan is my maternal uncle and I do not the name of second LA No. 63/2011 Page No. 11 of 50 witness on the earlier Will of 1989. We have a car but not having a driver. She used to go with me. She used to tell me as and when she has to go and accordingly I was make my day plan. I did not accompany with my mother when the said Will was got registered. My mother never talked to me regarding her first Will. Mr. S.S. Madan, my maternal uncle is at present in USA. My maternal uncle used to go USA as his children are settled in USA. He is frequently coming and going to India. I have filed the present petition on the basis of last Will of my mother. It is correct that the properties were bequeathed to me in both the Wills. It is incorrect to suggest that the first Will was got executed in my presence and the same was done at my behest. It is incorrect to suggest that my on getting the knowledge of the contents of the first Will then she express her desire for the execution of another Will and revoke the earlier Will dated 19.01.1989 and executed the fresh one. It is incorrect to suggest that my mother accompanied me for the purposes of registration of first Will to the office LA No. 63/2011 Page No. 12 of 50 of SubRegistrar, or that my mother did not accompany me for the execution of the second Will. I did not tried to find out where the last Will was attested. It is incorrect to suggest that my mother was not aware of the contents of the last Will and the same was got prepared by me towards my interest. My maternal uncle Mr. Man Mohan Singh Madan was working in RAW at New Delhi. He was transferred either from Chandigarh or Amritsur and was posted in RAW at New Delhi and I do not remember the year of his transfer. He used to stay at Jangpura. He lived with us long back when he was earlier transferred to New Delhi and he was lived with us about one year. He lived with us alone and not with his family. At the relevant time he used to stay remained with us i.e. myself and my mother. My mama is elder than me by 67 years. I have good cordial relation with my Shri M.M.S. Madan. It is wrong to suggest that I am deposing falsely."
12. The petitioner further examined Sh. Manmohan Singh as PW2 in support of his contentions. The relevant extract of the cross LA No. 63/2011 Page No. 13 of 50 examination of PW2 is as under:
"...I was posted in Delhi from period December, 1997 till January, 2010. After being posted in Delhi I stayed in Government Guest House about one month and after that I shifted to M157, Sector25, Noida which is my sister's residence. I stayed there till January, 2010. Only my sister and my brotherinlaw used to reside in that house and the accommodation of the same were three bed rooms and a servant quarter. I also stayed with my sister Late Mrs. Raminder Kaur Mehndiratta at K34C, SFS, Saket, New Delhi for sometime i.e. from 1992 to 1993 Vol. I don't remember the exact time and date, it is approximately one year. I stayed alone with my sister and petitioner whose my nephew. I was working with Cabinet Secretariat in the year 1992 as Assistant Commissioner. The working hours were 9.30 am to 6.00 pm. In the Year 1992, my family was residing at Amritsar. I used to meet my family at Amritsar once in a month. A maid who used to cook food and assist my sister in regular household work in LA No. 63/2011 Page No. 14 of 50 the year 1992. On 04.01.2000 at around 11.00 am to 11.30 am my sister called me up and asked me come to Saket in order to sign as the attesting witness to the Will dated 04.01.2000 to which I agreed. I was not aware of the said Will nor my sister had ever talked about the same to me earlier. I was also not aware about any of the previous Will. My sister asked me to come to her place in the evening. I reached her place around 4.30 pm. When I reached to my sister residence i.e. in Saket my elder brother Sh. S.S. Madan was already there along with my sister. At present, Sh. S.S. Madan is settled in USA with his children and visits India approximately once or twice in a year. I am not aware where the said Will dated 04.01.2000 was typed which is already Ex. as PW1/2. The Will Ex. PW1/2 was read by me before the same was signed by me in the presence of the executant and the other witness. I am aware of the contents of the Will. I have read the entire Will containing the paragraph of revocation of the previous Will dated 19.01.1989. I did not make any query about LA No. 63/2011 Page No. 15 of 50 the previous Will dated 19.01.1989 including beneficiary of the said Will. The portion at point A and B in the Will already Ex. PW1/2 was written in my presence and in the presence of other witness by my sister. The correction in the Will already Ex. PW1/2 was also done in our presence. The addition in the Will at point A and B and the corrections were carried over by my sister and it was not pointed out by me and my brother who are the witness of the said Will dated 04.01.2000. The will was signed after the addition and corrections and it was signed firstly by my sister and thereafter, I and my brother signed on the said Will Ex. PW1/2 and the same was signed about 5.00 pm on 04.01.2000. Sh. Bimaljeet Singh (petitioner) was not with us as it was a working day and he might have gone to his office. My sister never discuss her personal matters with me. I did not suggest my sister to make beneficiary to any of the other Legal heirs Vol. it was her personal wish and desire to give her property to the petitioner. I had no talk with the petitioner after the LA No. 63/2011 Page No. 16 of 50 execution of the Will till the date my sister died. I came to Delhi from Chandigarh and reached Delhi yesterday. I can not count exactly as to how many times I came to attend this case but it is roughly around 1516 times I came to Delhi to attend this case. As and when I came Delhi I came a day before the case fixed. I used to spend Rs.1,000/ per trip on coming and going from Chandigarh. The said amount is being compensated by the petitioner. It is correct that I also tendering the case when the case was in Patiala House Court before shifted to Saket Court. The Will Ex. PW1/2 was attested by Ms. Veena Bakshi, Notary Public at Mehrauli Court. We went there in the car of my brother who is also one of the attesting witness to the Will. We went to Mehrauli at the saying of our sister as she suggested that Mehrauli is near by place from her house. As far as I remember the Notary Public did not give any reference number or registration number on the Will Ex. PW1/2. She did not advice to sign on the corrections. Vol. the corrections was already done before we reached to the LA No. 63/2011 Page No. 17 of 50 Notary Public. Notary Public used to sit in the shed near the gate of the Mehrauli Court. We reached about at Mehrauli Court about 5.30 pm. I have no idea who paid the amount for attestation but the same was not paid by me. We went together and came together from Notary Public.
The petitioner used to purchase the household articles during my stay at Saket. In Saket house, my sister had two bed rooms and one living room besides kitchen, bathroom etc. I used to stay in a separate room then the room occupied by my sister and the petitioner. I was not used to spent my free hours with the petitioner but I prefer to spend that time with my friends. As far as I remember I was not going for the marketing with the petitioner. I used to pay a sum of Rs. 1,000/ to my sister for staying in her house whereas she was reluctant to take the said amount but I used to give her the said amount forcefully. Late Anil Jeet Singh was also my nephew. I had good relation with him as well. Late Anil Jeet Singh was staying in Lucknow and as LA No. 63/2011 Page No. 18 of 50 such I was not meeting him very frequently but as and when he came to Delhi he used to meet me at that time. I was posted at Amritsar when Anil Jeet Singh died. I met the wife of Anil Jeet Singh and his children after the death of Anil Jeet Singh, probably I met them twice. I can not exactly recollect the duration when I met the family of Anil Jeet Singh after his death. It is wrong to suggest that I am deposing false on the pretext of the petitioner as I am benefited a lot by the petitioner financially and otherwise. It is wrong to suggest that the execution of the Will did not take place in my presence. It is further wrong to suggest that I am not attesting witness to the Will. It is further wrong to suggest that I never went to the office of Notary Public for the execution of the Will in question. It is further wrong to suggest that I am deposing in this case in favour of the petitioner as I have an interest in the suit property. It is wrong to suggest that I am deposing falsely."
Thereafter, PE was closed.
13. Respondent also led evidence by way of affidavit and LA No. 63/2011 Page No. 19 of 50 examined herself as RW1. The relevant extract of the cross examination of RW1 is as under:
"...I am working as a Stenographer in Forest Department, U.P. at Lucknow. It is a government service. I am getting approximately a sum of Rs. 22,000/ in my hand per month after deductions. It is correct that my brotherinlaw, Mr. Bimaljeet Singh is working in Delhi in a private company. I do not know the exact salary of Mr. Bimaljeet Singh. It is incorrect to suggest that Mr. Bimaljeet Singh is drawing the salary of Rs. 15,000/ per month at the time of death of my motherinlaw. I know that my motherinlaw was a retired Basic Shiksha Adhikari in education department in U.P. This was informed by my deceased husband, again said it was also informed by motherinlaw. I do not know the qualifications of my motherinlaw and I also do not know whether she was double M.A. I got married with Late Shri Aniljeet Singh in the year 1985 and he died on 07.04.2004. I lived in joint family with my motherinlaw i.e. about 1 (one) months after my LA No. 63/2011 Page No. 20 of 50 marriage. It is correct that my husband was working at Lucknow in U.P. at the time of my marriage and my motherinlaw and the petitioner used to live in Delhi. It is incorrect to suggest that my relation with my husband was not cordial. It is further wrong to suggest that I was also not having cordial relation with my motherinlaw. The income of my husband was sufficient and my income was pushing one and we were running our household comfortably. It is incorrect to suggest that my motherinlaw used to remain tense because of my indifferent attitude with my deceased husband. It is correct that the petitioner is unmarried and used to look after his mother. Vol. we also regularly coming to see and look after my respected motherinlaw. The post office account was opened during the lifetime of my husband. Again said I do not remember exactly whether the said account was opened before his death or after his death. It is correct that said account was opened after the death of my husband. I do not know whether I opened MIS (monthly income scheme) LA No. 63/2011 Page No. 21 of 50 account, saving bank account and recurring bank account in the post office. It is correct that petitioner helped me in opening the aforesaid accounts. I do not know whether the amount in the MIS account was deposited after collecting the amount from the accounts of my husband for increasing my income in the shape of interest. I also do not know the MIS amount on its withdrawal was deposited in the saving bank account and from there it was deposited in the recurring deposit account from time to time to enhance further interest income of mine. It is correct that the petitioner used to assist in maintaining the said accounts. I cannot say whether the entire amount on its withdrawal from the aforesaid accounts had gone to my account as I have not seen the passbook. It is incorrect to suggest that I have not filed the respective passbooks of the aforesaid accounts as the amount was not deposited in my accounts only or that I have enjoyed the said amount. I am not demanding any amount from the petitioner out of the aforesaid accounts. I do not know as to how many LA No. 63/2011 Page No. 22 of 50 accounts I am holding in Delhi. At this time I am only recollecting that I had an account in Bank of India as well as in PNB. After seeing the documents Mark E, she has recollected that account in PNB was joint account in the name of my husband and mine. It is correct that I had an FDR in PNB as well. My motherinlaw sent the draft of Rs. 2,00,000/ to me after the death of my husband. Vol. it was the only amount sent by my motherinlaw to me and I am not aware about the accounts maintained in PNB Bank etc. It is correct that I authorise the petitioner for issuance of FDR in my name and for cheque book. The endorsements are made at point X & Y on Mark E(c). I have not received the amount of debentures of DCM company. I read and understood the letter Mark D (ab) before I put my signatures on the same. It is incorrect to suggest that the petitioner used not to send blank papers/ blank withdrawals slips for obtaining my signatures. Vol. petitioner used to send me the same. It is incorrect to suggest that as and when any withdrawal was made and LA No. 63/2011 Page No. 23 of 50 the said amount was sent to me in the shape of bank draft/ pay order.
My motherinlaw and the petitioner never extended financial help to me after the death of my husband except the aforesaid of Rs. 2,00,000/. My motherin law used to give clothes, money (shagan), other goods etc. from time to time. The petitioner has never helped to me nor he has given anything to me or to my children at any point of time. It is incorrect to suggest that petitioner used to help financially to me and as well helping the children from time to time. Vol. the petitioner sometimes purchased dresses etc. for my children. My motherinlaw died in July 2008. It is correct that I deposited the draft for a sum of Rs. 2,10,000/ in SBI account at Lucknow which was sent from Delhi. It is correct that the said amount of Rs. 2,10,000/ was sent by the petitioner. I do not know on which account a sum of Rs. 2,10,000/ was given by the petitioner. I did not ask the petitioner as to why he is giving the aforesaid sum of Rs. 2,10,000/. It is LA No. 63/2011 Page No. 24 of 50 incorrect to suggest that the petitioner has sent various drafts amounting to Rs. 10,000/ or Rs. 15,000/ from time to time after the death of my husband. Again said the petitioner sent a draft of Rs. 10,000/ in the month of July, 2004 after the death of my husband. I had other bank accounts in Lucknow in the year 2004 to March 2009."
"...It is correct that in salary account one can deposit and withdraw the amount from the said salary account. It is incorrect to suggest that I have not filed the bank statement of account of the aforesaid accounts to hide the financial help extended by the petitioner and my motherinlaw from time to time.
I cannot identify the signature of my motherinlaw, however I have seen her signatures. I have never seen the signatures of Shri S.S. Madan and Shri Manmohan Singh Madan. It is correct that both are the real brothers of my motherinlaw. Again said that Shri S.S. Madan was the real brother and Shri Manmohan Singh is from second mother of my motherinlaw. I may LA No. 63/2011 Page No. 25 of 50 identify the handwriting of my motherinlaw but I cannot say with the surety that the same is written by my motherinlaw or not. I do not know whether my mother inlaw executed two Wills. I do not know whether my motherinlaw executed the both the Wills i.e. on 19.01.1989 and 04.01.2000 during the lifetime of my husband. Vol. my motherinlaw informed me that she has written a Will in which she has mentioned each and every articles including the clothes in the said but I do not know about the said Will. My motherinlaw did not inform me about the particular thing was bequeathed to a particular person. I do not know whether my mother inlaw was the owner of the house at Saket in which she was staying with the petitioner. I have some idea about the ancestral property of my motherinlaw which was informed by my husband, the detail of which I am not aware. I had never demanded any share from the ancestral property or from the property of my mother inlaw. It is incorrect to suggest that she was not having sound mind when she died. She was not having sound LA No. 63/2011 Page No. 26 of 50 mind for the last 2/3 years from the date of her death. She being the old lady used to have old age ailments and some time she was admitted in the hospital for her treatment. It is correct that the petitioner had engaged a maid servant to look after my motherinlaw. It is correct that my motherinlaw had not worked after her retirement and she was living with the petitioner. Vol. she used to visit at Lucknow. The signature at point X on Exhibit PW1/2 are similar to that of my mother inlaw. I cannot tell about the signatures at point X1, X2, X3 and X4 on Exhibit PW1/2. I also cannot tell about the handwriting marked at point A to A and B to B on Exhibit PW1/2. It is incorrect to suggest that I am deliberately with malafide intention not identifying the handwriting and signature of my motherinlaw. I also have no knowledge about any registered Will. I am not clear whether the signature at point A, B, C & D on Exhibit PW1/D are of my motherinlaw. It is incorrect to suggest that I am deliberately with malafide intention not identifying the handwriting and signature of my LA No. 63/2011 Page No. 27 of 50 motherinlaw. I also cannot tell about the handwriting marked at point E, F and G on Exhibit PW1/D. I cannot admit that since the petitioner was taken care of my motherinlaw for that reason she had given the house to the petitioner in the Will. Vol. we also used to visit my motherinlaw. I cannot tell the exact dates of my stay in Delhi however I used to come at times for approximately 15 days or so. It is wrong to suggest that I never stayed with my motherinlaw since I had not good relation with my motherinlaw. It is wrong to suggest that Will in question is genuine Will of my motherinlaw or the same is not forged and not fabricated. It is wrong to suggest that I am deposing falsely. It is further wrong to suggest that my mother inlaw assured me for the help to me and my children after the death of my husband. It is further wrong to suggest that Will was not signed at later stage or manipulated the name of the petitioner later on. I came to Delhi on 13/14.12.2011. I have come to Delhi after taking leave from my office at Lucknow. I met my LA No. 63/2011 Page No. 28 of 50 counsel on the same day in the evening when I reached Delhi. My counsel had obtained my signature on certain documents. By certain documents I mean my affidavit Exhibit RW1/A. My affidavit was drafted after my instructions by my counsel. I signed on the affidavit on the same day. It is wrong to suggest that my affidavit Exhibit RW1/A was not drafted at my instructions and I signed the same at that vary time. It is wrong to suggest that I had signed the affidavit today or the same was typed at the instance of my advocate."
14. The respondent also examined Ms. Veena Bakshi, Advocate / Notary Public from SDM Court, Hauz Khas at Mehrauli as RW2 in support of her evidence. The extract of her examination is as under:
"I have brought the summoned register along with me which I was maintaining during the course of attestation of documents. Exhibit PW1/2 i.e. original Will is attested by me at point Y. I have made entry in my register on 04.01.2000 and also obtained the signature of executant and the two attesting witnesses. The photocopy of the said entry in the register is Exhibit LA No. 63/2011 Page No. 29 of 50 DW2/A which bears my signature at point A and the signature of the executant and the attesting witnesses are at point B, C & D respectively (OSR). The Will Exhibit PW1/2 is not drafted by me. I checked the identification of the executant and attesting witnesses. I do not remember as to what document I saw to check their identification. The hand written portion at point A & B were already in the Will Exhibit PW1/2. Vol. I rather asked the executant to why did not you retyped the said Will but she replied it is alright. I have not put my initial on the handwritten portion point A & B as I was fully satisfied with her answer. I cannot tell the time for attestation of the Will and what time they came for attestation of the Will as its about 12 years old. I am regularly attesting the documents including Will. I cannot specify the exact number of documents attested in a day. I even cannot say whether documents are not coming for attestation for a week. It is correct that previous 2 pages are blank and the same are cut by me and signed. Vol. sometime papers go together LA No. 63/2011 Page No. 30 of 50 and did not get attention at relevant time. It is correct that before the attestation of Will on 04.01.2000, the earlier attestation was done on 23.12.1999. There are two more blank papers between 17 December 1999 and 23 December 1999, these papers are not crossed and signed by me. It is correct that the signature at point X were done before me and the signature at point XY and XZ were also done in my presence. The signature at point X 1 and X2 were also done in my presence by executant. The correction at point A & B were not done in my presence."
Thereafter, RE was closed.
15. Arguments heard. Record perused carefully. Since issue no. 1 and 2 are interconnected, hence taken together: ISSUE NO. 1
Whether the deceased had validly executed the Will dated 04.01.2000?
and ISSUE NO. 2 Whether the petitioner is entitled to the grant of letter of administration in respect of the estate of the deceased?
16. It is argued by learned counsel for petitioner that the petitioner LA No. 63/2011 Page No. 31 of 50 has proved his case as per the provisions of The Indian Succession Act,1925 and the Will dated 04.01.2000 of the deceased Smt. Raminder Kaur Mehdiratta stands proved and the petitioner should be granted probate in respect of Will in question.
17. It is submitted by counsel for petitioner that the petitioner is the son of deceased testatrix and is the exclusive beneficiary of the Will in question. It is submitted that the deceased Smt. Raminder Kaur Mehdiratta, W/o late Dr. Charan Jeet Singh Mehdiratta expired on 25.07.2008 within the territorial jurisdiction of this court. Before her death, she had executed a Will dated 04.01.2000 bequeathing her property bearing no. K34C, SFS Flats, Saket, New Delhi along with scooter garage no. 75, BlockK, SFS Flats, Saket, New Delhi in favour of petitioner.
18. It is further submitted that the Will was duly attested by Sh. S. S. Madan and Sh. Man Mohan Singh Madan. It is further submitted that both the attesting witnesses are the brothers of the deceased testatrix.
19. It is further submitted that the deceased left behind her the petitioner, daughter Smt. Manveen Bishnoi, son Sh. Kanwal Jeet Singh and widow of late Sh. Anil Jeet Singh - Smt. Satinder Kaur along with her both children Ms. Praneet Kaur and Master Supreet Singh. Smt. LA No. 63/2011 Page No. 32 of 50 Manveen Bishnoi and Sh. Kanwal Jeet Singh have filed "no objection"
in favour of the petitioner and the suit is contested only by Smt. Satinder Kaur and also on behalf of her minor children Ms. Praneet Kaur and Master Supreet Singh.
20. Learned counsel for petitioner submitted that the main objections taken on behalf of respondent no. 4 is that the Will in question is forged and fabricated but no evidence of forgery and fabrication of the document has been placed on record by the respondent. It is submitted by learned counsel for petitioner that as per the requirement of The Indian Succession Act, 1925 and also as per the provisions of The Indian Evidence Act although there are two attesting witnesses to the Will but only one witness is examined as the other witness is not residing in India and is residing in the vicinity of USA. It is further submitted that the petitioner is able to discharge the onus of proving the Will by examining one attesting witness to the Will.
21. It is submitted by counsel for petitioner that it is not denied that the deceased has also executed a Will dated 19.01.1989 in favour of the petitioner and there is no difference in the contents of both the Wills. In the previous Will dated 19.01.1989 also petitioner was the exclusive beneficiary and in the present Will dated 04.01.2000 also petitioner is the beneficiary to the Will. It is submitted by counsel for LA No. 63/2011 Page No. 33 of 50 petitioner that the objections raised by the respondent that there was no need to execute the second Will and the execution of second Will by the deceased with the same contents is suggestive of forgery and fabrication, has no grounds as in the Will in question the execution of the previous Will has been duly mentioned by the deceased testatrix and has also mentioned that the Will dated 19.01.1989 shall stand revoked.
22. It is further submitted by counsel for petitioner that the Will has been duly proved and the objections filed on behalf of respondents no. 4, 5 and 6 does not have any substance in the eyes of law and accordingly the probate be granted in favour of petitioner.
23. However, on the other hand it is argued by learned counsel for respondents that the execution of the Will is surrounded in the suspicious circumstances and petitioner is not able to remove the clouds of suspicion. It is further argued by counsel for respondent no. 4 that onus lies upon petitioner that in case if any doubts and suspicious circumstances occurred to remove the same is the duty of the petitioner and the duty has not been duly rendered before this court to prove the genuineness of the Will and hence, the petition be dismissed.
24. It is argued by counsel for respondent no. 4 that the petitioner LA No. 63/2011 Page No. 34 of 50 was actively participating in the daytoday activities of the deceased and there were all opportunities available to the petitioner to obtain the signature of deceased on the blank papers in the garb of making some complaints before the authorities and thereby to use the blank paper having signatures of the deceased in the manner best suited to him.
25. It is further argued that the deceased has executed a second Will when the Will dated 19.01.1989 was already executed by the deceased. It is further argued that as per the family circumstances of the petitioner, the husband of respondent no. 4 expired and there is no reason / occasion for the deceased to exclude respondent no. 6, the only grandson in the family from the benefits of the properties and the exclusion of respondent no. 4 from the benefit of the property of deceased raises shadow and suspicion on the execution of the Will in question.
26. It is further argued by counsel for respondent no. 4 that there are contradictions in the statement of the attesting witness with regard to the time of execution of the Will. It is submitted that there are contradictions whether the deceased testatrix has signed the Will at 04:30 PM or after 05:30 PM. It is further argued by counsel for respondent that since there are contradictions with regard to the time of execution of the Will, it create doubts and clouds on the valid LA No. 63/2011 Page No. 35 of 50 execution of the Will in question.
27. It is further argued by counsel for respondent that in the statement of RW2 Ms. Veena Bakshi it came out that the Will in question was signed by deceased testatrix in her presence and admittedly the testatrix along with attesting witness appeared before the Notary not before 05:30 PM but the attesting witness submits that the deceased testatrix signed on the Will around 04:30 PM. It is argued that when they reached the office of testatrix only after 05:30 PM, then how come they signed on the Will at 04:30 PM.
28. It is further argued by counsel for respondent that as per the statement of the petitioner one maid servant namely Lata was hired by the petitioner for the exclusive services of the deceased but even after the death of the deceased testatrix, Lata is still in the employment of the petitioner and this fact also raised a strong presumption that the petitioner is connived with the servant in order to get the signature of deceased on the blank paper.
29. It is further argued by counsel for respondent that respondent no. 4, 5 and 6 had cordial relations with the deceased and their exclusion from the Will appears to be unnatural and suggestive of the circumstances that the Will in question is not genuine.
30. Learned counsel for petitioner rebutted the arguments of LA No. 63/2011 Page No. 36 of 50 learned counsel for respondents by submitting that it was the petitioner who was exclusively doing the services of deceased and even in the Will the deceased has written that the petitioner is serving her like a "Shrawan Putar".
31. It is further submitted that the brother of petitioner Shri Kanwal Jeet Singh and sister Smt. Manveen Bishnoi have no objections if the probate be granted in favour of petitioner. It is further argued by counsel for petitioner that it is not unnatural if petitioner has been made exclusive beneficiary under the Will as it was the petitioner only who was taking due care and was serving the deceased till her last breath.
32. It is further argued by counsel for petitioner that if the deceased has executed a second Will by revoking the Will dated 19.01.1989, it can not be said that the execution of second Will is under suspicious circumstances. It is further argued by learned counsel for petitioner that it is psychology of the deceased to revoke the earlier Will dated 19.01.1989 and to execute the Will in question subsequently.
33. It is further submitted by counsel for petitioner that the deceased had executed the second Will / the Will in question in the year 2000 and at the time of execution of this Will, she was quite hale LA No. 63/2011 Page No. 37 of 50 and hearty and was in sound disposing state of mind.
34. It is further submitted that the deceased expired after about eight years of the execution of the Will in question. It is further argued by counsel for petitioner that at the time of execution of Will, the husband of respondent no. 4 and father of respondent no. 5 & 6 was alive and was serving in the Ministry of External Affairs. It is further submitted that at that time the deceased had excluded all the legal heirs and not only respondent no. 6.
35. It is further argued by counsel for petitioner that it was for the deceased even to change this Will in question in order to include respondent no. 4 but the same has not been done by the deceased in this case. It is further argued by counsel for petitioner that admittedly no subsequent Will has been produced by respondent no. 4 to 5 before this court till date.
36. Learned counsel for petitioner has placed reliance upon the authority in Satya Pal Chopra v. State & Ors. reported in 2011 STPL(DJ) 2213 DELHI wherein it is held that "contradiction in the testimony of witnesses minor in nature since the evidence was recorded after a gap of many years and memory can fade", is not fatal to the case.
LA No. 63/2011 Page No. 38 of 50
37. It is argued by counsel for petitioner that in the present case also the Will in question was executed in the year 2000 and the witness is deposing before this court on 20112012 and there are only minor contradictions in the statement of the attesting witness pertaining to the time of execution of the Will, however, it is duly proved that the Will in question was duly executed in the presence of Ms. Veena Bakshi, Notary Public who is produced and examined by respondent no. 4 herself.
38. It is further argued that in the statement of RW2 it is duly admitted that the deceased along with both the witnesses has signed at point 'X', 'XY' and 'XZ' on Will Ex.PW1/2 which is a proof of the execution of Will in question and support the case of the petitioner.
39. Learned counsel for petitioner has also placed reliance on judgment Gopal Swaroop v. Krishna Murari Mangal & Ors. 2010 STPL(LE) 44523 SC wherein it is held by Hon'ble Apex Court that "as per the provisions of Section 63 of The Indian Evidence Act, the proof of execution of a Will would require the following aspects to be provided:
(1) That the Testator has signed or affixed his mark to the Will or the Will has been signed by some other person in the LA No. 63/2011 Page No. 39 of 50 presence and under the direction of the Testator. (2) The signature or mark of the Testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a Will.
(3) That the Will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the Will or has been seen by some other person signing the Will in the presence and by the direction of the Testator or has received from Testator a personal acknowledgment of the signature or mark or the signature of each other person. (4) That each of the witnesses has signed the Will in the presence of the Testator."
40. It is argued by learned counsel for petitioner that as per The Indian Succession Act, 1925 as well as Section 63 of The Indian Evidence Act, 1872 and also on the basis of catena of judgments wherein the rule of proof of Will have been cited, the petitioner has discharged the onus and accordingly the probate be granted in his favour.
41. I came across the judgments on the point of duly execution of LA No. 63/2011 Page No. 40 of 50 the Will, cited in Yashoda Gupta Vs. Suniti Goyal, AIR 2002 Del. 20 in which it is held that:
"There are three things to be kept in mind: (i) The propounder of a Will has to prove its due and valid execution.
(ii) If there are any suspicious circumstances surrounding the execution of a Will, the propounder must remove the suspicions by cogent and satisfactory evidence
(iii) The application of the above principles depends on the facts and circumstances of each case. Whether a Will is genuine or not has to be decided on the facts of each case. There is no mathematical equation to determine whether a Will is genuine or not. The authenticity of a Will depends on the circumstances surrounding its execution and the quality of the evidence that is led in respect of its genuineness."
42. Hon'ble Apex court held in Gnanasoundari v. Chinammal (20002) 129 Mad. L. W. 658: "The following guidelines have to be borne in mind, LA No. 63/2011 Page No. 41 of 50 while appreciating the evidence relating to Will: (1) The propounder of the Will has to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind and that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will. (2) When the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound disposing state of the testator's mind and his signature as required by law, the court would be justified in making a finding in favour of the propounder. (3) If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself can be treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. (4) The onus of providing the Will is on the propounder. In the absence of suspicious circumstances LA No. 63/2011 Page No. 42 of 50 surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge to onus. Where, however, there are suspicious circumstance, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. (5) The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural improbable or unfair in the light of the relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. (6) Any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. (7) What are the suspicious circumstances must be judged LA No. 63/2011 Page No. 43 of 50 in the facts and circumstances of each particular case. It is obvious that for deciding the material questions of fact regarding the genuineness of the Will, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. The board principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. (8) If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document. (9) There are two rules of law set out. The first is that the onus for proving the execution of the document lies in every case upon the party propounding a Will and he must satisfy the conscience of the court LA No. 63/2011 Page No. 44 of 50 that the instrument so propounded is the last Will of a free and capable testator. The second is that, if a party writes or prepares a Will under which he takes a benefit, that is circumstance that ought generally to excite the suspicion of the court and call upon it to be vigilant and zealous in examining the witness in support of the instrument in favour of which it ought not be pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.
43. In Khumkcham Ningol Chandam Ongbi Ibeton Devi & Ors. Vs. Khumumcham Bishwasakha Singh & Anr. (2001) 2 Hindu LR 119 (Gau), Hon'ble High Court has held that:
"Regarding the mode of proving of a Will, the Supreme Court in H. Venkatachala Iyengar V. B. N. Trimmajamma MANU/SC/0115/1958 held that as in the case of proof of other documents so 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 LA No. 63/2011 Page No. 45 of 50 in such matters. Though in the same case, the supreme court further held that other factors like surrounding circumstances including that existence of suspicious circumstances, if any should be clearly explained and dispelled by the propounder."
44. AIR 2003 Supreme Court 3109 Ramabai Padmakar Patil (dead) by LRs and others, versus Rukminibai Vishnu Vekhande and others wherein the court held that:
"..wherein the mother gave her entire property to the widowed daughter who lost her husband at very early age. Exclusion of all other daughters would not, in facts and circumstance, cast doubt as to authenticity of Will."
45. 2010 AIOL 819 Supreme Court of India Gopal Swaroop versus Krishna Murari & others wherein it is held that:
"In case where the document sought to be proved is required to be attested, same cannot let be in evidence unless atleast one of the attesting witness has been called for proving attestation."
46. AIR 2003 Supreme Court 761 Janki Narayan Bhoir LA No. 63/2011 Page No. 46 of 50 versus Narayan Namdeo Kadam, it is held that:
"...Wherein if one attesting witness is able to prove execution i.e. if satisfies requirement of attestation of Will by other witness also - examination of other attesting witness can be dispensed with."
47. AIR 2005 Supreme Court 4362 Pentakota Satyanaranana and others versus Pentakota Seetharatnam and others:
"...wherein it is held that - endorsement by Sub Registrar that executant has acknowledged execution before him amounts to attestation and the witnesses also deposed that they signed on the Will as attesting witness and at that time the deceased was in sound disposition of mind and the document also contained signature of attesting witnesses - held burden of proof to prove Will had been duly and satisfactorily discharge by the claimant."
48. 2008 AIOL 527 Supreme Court of India Anil Kak Versus Kumari Sharada Raje & others:
"...it is held that deprivation of a due share by the natural heir by itself may not be held to be a suspicious LA No. 63/2011 Page No. 47 of 50 circumstance but it is one of the factor which is take into consideration by the courts before granting probate of a Will - propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof."
49. Upon facts and circumstances and on the basis of evidence placed on record by both the parties, I am of this opinion that petitioner has duly discharged his onus in proving the Will in question and the objections on behalf of respondents pertaining to the exclusion of respondent no. 4, is not maintainable as the deceased has excluded all her legal heirs and made only the petitioner a beneficiary to the Will.
50. The contentions of the respondents that the petitioner has obtained the signature of the deceased on blank paper, are not proved in any manner by the respondents. Although, the Will in question is the second Will of deceased testatrix but the execution of second Will by revoking the first Will even with the same contents, does not create any doubt / suspicion about the execution of this Will when the same LA No. 63/2011 Page No. 48 of 50 has been duly proved by the petitioner by examining petitioner as well as one of the attesting witness to the Will. Even the testimony of the official witness RW2 supports the execution of the Will in question.
51. The argument of learned counsel for respondent that one maid servant Lata was employed for the exclusive services of the deceased and even after her death she is still working with the petitioner, is irrelevant.
52. Both the attesting witnesses to the Will are admittedly the brothers of the deceased testatrix i.e. maternal uncles of the petitioner as well as of the respondents and admittedly both the attesting witnesses were not stranger to the family. The arguments of the learned counsel for respondent that PW2 Sh. Manmohan Singh is an interesting witness as he attended the court on more than 15 times, cannot be appreciated that since these are the family matters and attesting witness is maternal uncle of both the parties, moreover, from the perusal of record, it appears that he attended the court only after the matter was fixed for evidence.
53. On the basis of above discussion, I am of this opinion that the petitioner has duly discharged his onus in proving the Will in question and accordingly he is entitled for grant of probate in his favour with respect to Will dated 04.01.2000.
LA No. 63/2011 Page No. 49 of 50
54. Valuation report has been received in this case. Probate of the Will dated 04.01.2000 is hereby granted to the petitioner on filing of Advalorum stamp fees as per valuation report and on furnishing of surety and administrative bond as per law. It is further clarified that question of title, share and ownership of the property mentioned in the Will has not been adjudicated upon by this court in any manner.
RELIEF:
55. The petition filed under Section 272 of The Indian Succession Act, 1925 for grant of probate of Will dated 04.01.2000 is allowed in terms of the above.
56. File be consigned to record room after necessary compliance.
Announced in the open Court.
(NEELAM SINGH) ADJ02, SOUTH, SAKET, NEW DELHI 14.05.2012/TP LA No. 63/2011 Page No. 50 of 50 LA No. 63/2011 Bimaljeet Singh v. State & Ors.
14.05.2012
Present: Counsel for petitioner.
Counsel for respondent.
Vide separate judgment, probate of Will dated 04.01.2000 is granted to the petitioner on filing of Advalorum stamp fees and on furnishing of administrative cum surety bond as per valuation report. File be consigned to record room after necessary compliance.
(NEELAM SINGH) ADJ02, SOUTH, SAKET, NEW DELHI 14.05.2012/TP LA No. 63/2011 Page No. 51 of 50