Delhi District Court
Vijy Kumar Chawla vs State on 1 November, 2023
IN THE COURT OF SH. SHIV KUMAR, ADDL. DISTRICT
JUDGE-02 (WEST DISTRICT), TIS HAZARI COURTS
DELHI.
Probate Case No.- 17/17
CNR No. DLWT01-003283-2017
Sh. Vijay Kumar Chawla
S/o Late Sh. Tek Chand Chawla,
R/o H. No. 29/12, Punjabi Bagh Extn.
New Delhi-110026
.......Petitioner
Versus
1. The State (N.C.T OF DELHI)
2. Sh. Gulshan Kumar Chawla
S/o Late Sh. Tek Chand Chawla
R/o H. No. 29/12, Punjabi Bagh Extn.
New Delhi-110026
3. Smt. Sudesh Dandona
D/o Late Sh. Tek Chand Chawla,
W/o Sh. Ashok Kumar
R/o 20 Talon Way, Dix Hills,
New York 11746, USA
......Respondents
PETITION UNDER SECTION 276/278 OF THE INDIAN
SUCCESSION ACT FOR GRANT OF PROBATE/LETTERS OF
ADMINISTRATION OF THE WILL DATED 08.07.2010 EXECUTED
BY LATE SH. TEK CHAND CHAWLA S/O SH. TIRATH RAM
CHAWLA.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 1 of 50
Date of institution of the case : 15.04.2017
Date of for judgment reserved : 07.10.2023
Date of pronouncement of judgment: 01.11.2023
JUDGMENT
1. Vide this judgment, I shall decide the petition filed by the petitioner, under Section 276/278 of the Indian Succession Act whereby which the petitioner has sought grant of Probate/letters of administration of the Will dated 08.07.2010 executed by Late Sh. Tek Chand Chawla S/o Sh. Tirath Ram Chawla, who died testamentary on 06-11-2012.
CASE OF THE PETITIONER, AS PER HIS PETITION
2. According to the petition, the case of the petitioner in nutshell is that Late Sh. Tek Chand Chawla S/o Late Tirath Ram Chawla ( hereinafter referred to as ' the deceased'), father of petitioner, respondent no. 2 and respondent no. 3, died on 06.11.2012. The deceased Tek Chand Chawla was having his permanent place of residence at 29/12, Punjabi Bagh Extn. New Delhi-110026 (hereinafter referred to as 'the property in question'). It is averred that the property in question was the self-acquired property of the deceased by virtue of his membership with Adharsh Bhawan Co-operative House Building Society Ltd., New Delhi. The deceased has bequeathed the property in question by virtue of a registered Will dated 08th July, 2010 as under:
a. That the petitioner will get entire ground floor, b. That the respondent no. 2 will get first floor, PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 2 of 50 c. and Smt. Usha Chawla, wife of the deceased (who died during trial of the present case on 22-03-2022) will get second floor of above said property along with other movable properties like bank accounts, telephone etc.
3. It is averred by the petitioner in the petition that the Will dated 08.07.2010 is a registered will and is the last Will of the deceased, executed by the deceased in the presence of witnesses and petitioner has been appointed as an executor in the said Will. The petitioner has thus prayed for probate/letters of administration of the registered Will dated 08.07.2010 executed by the deceased in respect of the property in question along with bank accounts and other movable assets of the deceased in his favour.
4. Upon filing the present petition, notice of the petition was issued to all the respondents. Citation for general public was published in the daily newspaper "Asian Age" dated 24.04.2017. Notice was also served to the State through Chief Secretary and to the Collector/SDM. No objections were received to the petition, from any quarter despite publication of the citation in newspaper.
5. The Collector of stamps Punjabi Bagh has filed a valuation report in respect of the property bearing no. 29/12, Punjabi Bagh Extn. New Delhi valuing the same to be of Rs.3,01,30,324/- (Rupees Three Crores One Lakh Thirty Thousand Three Hundred Twenty-Four only).
6. Originally in the petition, there were four respondents which were as follows:-
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 3 of 501. The State (N.C.T OF DELHI)
2. Sh. Gulshan Kumar Chawla S/o Late Sh. Tek Chand Chawla R/o H. No. 29/12, Punjabi Bagh Extn.
New Delhi-110026
3. Smt. Usha Chawla ( died on 22.03.2022 and her name was struck off by the court vide order dated 20.05.2022) W/o Late Sh. Tek chand Chawla, W/o Sh. Ashok Kumar R/o H. No. 29/12, Punjabi Bagh Extn.
New Delhi-110026
4. Smt. Sudesh Dandona D/o Late Sh. Tek Chand Chawla, W/o sh. Ashok Kumar, R/o 20 Talon Way, Dix Hills, New York 11746, USA.
NO OBJECTION ON BEAHALF OF RESPONDENT NO.3 AND 4
7. In this case, respondent no. 3 & 4 had filed their no objection in favour of the petitioner for issuing him probate/letters of administration of the Will dated 08-07.2010 executed by the deceased and they admitted all the contents of the petition.
8. On 20.5.2022, during trial of the case, the Ld. Counsel for respondent No.3 and 4 submitted that the respondent no.3 has died on 22.03.2022 and on this, ld. Counsel for petitioner submitted that since all the legal heirs of respondent no.3 are already on record, the name of respondent no.3 be struck off from the array of parties and this submission of Ld. Counsel for the petitioner was allowed and name of respondent no.3 PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 4 of 50 was struck off from the array of parties and consequently amended memo of parties was filed, thereafter by the petitioner.
CASE OF RESPONDENT NO.2, AS PER HIS REPLY
9. Respondent no. 2 has filed reply/objection to the present petition by taking preliminary objections that the present petition is barred by severe delay and laches and deserve to be dismissed. It is further contended that the father of petitioner died on 06.11.2012 and the petitioner failed to file the present petition within the period of limitation.
10. It is further contended by the respondent no.2 that the petitioner has no locus standi to file the present petition and the petitioner has not disclosed the entire facts and circumstances before the Hon'ble court and has suppressed material facts which are essential for a just decision of the present case.
11. It is further contended by the respondent no.2 that the present petition is a mala fide attempt on the part of the petitioner to usurp the property of the answering respondent.
12. It is further contented that on 18.05.1979, a declaration/settlement was entered between the deceased and the respondent No.2 and as per that settlement, the respondent no. 2 would bear all the financial expenses for constructing the property in question and upon completion of the construction of the house, the house would be transferred in the name. of the respondent No.2 by the deceased.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 5 of 5013. It is further contended that the said declaration/settlement was signed by the deceased and the respondent No. 2, where the petitioner and his mother, also acted as witnesses and the said declaration deed dated 18.5.1979 was duly notarized on the same date. It is further contended that the said declaration/settlement specifies the initial amount contributed by the respondent no.2 towards the construction amounting to Rs. 40,000 and further an amount of 7000 US Dollars (approximately Rs. 84,000) and for the completion of the construction of the property in question, respondent no.2 has contributed total a sum of Rs. 5,12,055/-.
14. It is further contended that as per the Declaration dated 18.05.1979, soon after the completion of the construction of the house in question, the entire house was to be transferred in the name of the respondent no. 2. However, respondent no.2 did not press upon the same as he had utter faith upon his father and mother and therefore he had never insisted on the formal transfer of the said property in question. He further contended that as gratuitous good gesture and in order to ensure peace and harmony in the family, he had never objected to his brother and his parents, residing on the ground floor of the said property, although his brother/the petitioner owned an apartment in Dwarka.
15. It is further contended that from the very beginning, he is in exclusive possession of the first and second floor of the property in question. It is further contended that the respondent no.2 had to frequently travel due to his employment and therefore he thought it best that his parents continued to reside with petitioner. It is further contended that with time, he observed that his brother/petitioner and wife of the petitioner PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 6 of 50 would constantly taunt his father about owing a part of the said plot and she even went so far to say that her father had died since the deceased had not transferred one of the floor to them and her taunts became so severe in 1993 that the deceased requested respondent no.2 to revisit the understanding that had been recorded on 18.05.1979.
16. It is further contended that on 07.09.1993, a meeting was held between the respondent no. 2 and his father under the mediation of Shri Lakhbir Singh and Sh. Darshan Lal ( Secretary and President of Jan Kalyan Samiti), wherein it was settled that first and second floor of the property in question would be in the exclusive possession of the respondent no. 2 whereas the ground floor of the suit property shall be for the exclusive use of the father of the respondent no. 2 and other members of the family and the understanding specifically recorded that the deceased would not deviate this in his own will.
17. It is further contended that respondent no.2 out of love and affection and for the sake of peace of the family, although he had contributed nearly 94% of the funds for the said property, abided by the agreement/understanding dated 07.09.1993. He further contended that now, the petitioner wants to grab the second floor of the property. It is further averred that respondent no.2 has filed a suit for declaration before this court, of the agreement dated 18.05.1979 whereby the entire property was to be transferred in his name by the deceased.
18. It is further averred by respondent no.2 that he never permanently resided in Delhi due to his job and it has only been since April PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 7 of 50 2016, when he retired from his job and returned to India, he started residing at the said property.
19. It is further contended by respondent no. 2 that it is inconceivable that his father would without force and coercion, execute the Will dated 08.07.2010, contrary to his own agreement dated 07.09.1993. it is further averred that assuming without admitting that the will was executed by his father, the respondent no.2 realizes that his father was very vulnerable and was coerced and pressurized into signing the Will and assuming that the Will was executed by the father of the parties, his mental competence in executing the Will is questionable.
20. On merit all the contents mentioned in the petition are denied by the respondent no.2 and he prayed that petition filed by the petitioner may be dismissed with exemplary costs.
21. Petitioner has also filed rejoinder to the written statement, filed by respondent no. 2 and reiterated the contents of his petition and denied all the objections taken by respondent no. 2 and further averred that respondent no.2 was in service and whole life remain out of city and has never cared his parents or other family members. He further averred that the respondent no.2 being highly egotistic, short tempered and arrogant in nature has always misbehaved with all the family members.
22. On the basis of the pleadings, the following issues were framed vide order dated 25.08.2017 PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 8 of 50
1. Whether the Will dated 08.07.2010 executed by late Sh. Tek Chand Chawla S/o Sh. Tirath Ram Chawla is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP
2. Whether the petitioner is entitled for Probate/Letters of Administration on the basis of the aforesaid Will, as claimed? OPP
3. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 in the reply/objections? OPR
4. Whether the present Probate Petition is barred by Limitation? OPR2
5. Whether the petitioner has the locus standi to file the present petition? OPR2
6. Whether the Will dated 08.07.2010 was entered by late Shri Tek Chand Chawla under coercion and undue influence and legally valid and enforceable or not? OPR2
7. Whether the petitioner has not paid the appropriate court fees and the present petition is not maintainable? OPR2
8. Relief
23. Parties were directed to adduce evidence.
EVIDENCE ON BEHALF OF PETITIONER
24. Petitioner in support of his case has examined two witnesses,
25. Sh. Vijay Kumar Chawla, Petitioner, appeared in the witness box as PW-1 and tendered his affidavit in evidence as Ex PW-1/A. In his affidavit, he reiterated and reaffirmed the averments mentioned by him in his petition and relied upon the following documents:
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 9 of 501. Ex. PW-1/1 (OSR): Photocopy of his Election I Card.
2. Ex. PW-1/2 (OSR: Photocopy of his Aadhar Card.
3. Ex.PW-1/3: Death certificate of his father late Sh. Tek Chand Chawla.
4. Ex. PW-1/4: the detail of immovable property.
26. In his cross-examination, he deposed that relations between him and all the members of the family were not at all cordial with respondent no. 2 and again said the relations between him and all the members of the family with respondent no. 2 have not been cordial for the last 30 years. He informed Mr. Gulshan Kumar Chawla/ respondent no. 2 about the execution of the Will in the year 2013. He was not aware about the execution of the Will in the year 2010. He further deposed that his cousin Mr. H.C. Chawla, one of the attesting witnesses told him about the Will in question, after the death of his father, in the year 2013. He denied the suggestion that as soon as he handed over the copy of the Will to respondent no. 2 in year 2013, he immediately objected to the contents of the Will. He further deposed in cross examination that his father was not suffering from any ailment before his death and his father died due to cardiac arrest on 06-11-2012. He denied the suggestion that by taking benefit of the senility of his father, he coerced his father for entering into the Will dated 08.07.2010.
27. In his further cross-examination, he denied the suggestion that the property in question was built, as it stands today, with the funds of respondent no. 2. He further denied the suggestion that the respondent no. 2 is currently in possession of first floor as well as second floor of the property in accordance with the understanding between his father and respondent no. 2. He further denied the suggestion that he in collusion with PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 10 of 50 his mother, had coerced his father to enter into the Will, in contravention of the understanding between his father and respondent no. 2.
28. In his further cross-examination, PW-1identified the signatures of his father on the Proforma filed with MCD, dated 24.03.1987 Ex. PW- 1/R2/1. He further deposed that he did not know who take his father for registration of the Will in question as he was in Bombay at that time as he was posted in Bombay. He further deposed that his father was self- sufficient financially after his retirement. He denied the suggestion that his mother was suffering from arthritis in the year 2012 and using wheel chair. He denied the suggestion that he was involved in preparation of the Will in question.
29. Sh. H.C. Chawla, one of the attesting witnesses appeared in the witness box as PW-2 and tendered his evidence by way of affidavit Ex. PW-2/A. He proved the original Will dated 08.07.2010 Ex. PW-2/1. He identified the signatures of the deceased/testator at point A, his signatures at point B and signatures of other attesting witness Sh. O.P. Malhotra at point C on Will Ex. PW-2/1.
30. In his cross-examination, he deposed that he is presently a lawyer. He knows Mr. O.P. Malhotra being his colleague and retired from the same office. He further deposed that Mr. O.P. Malhotra currently resides in 199, Nagin Lake Apartment, Peera Garhi, Outer ring Road, Delhi. He further deposed in his cross examination that the deceased was his paternal uncle and he had very cordial relations with him. He got a call around 11:00 AM (again said 10:00 AM) from him on 08.07.2010 via PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 11 of 50 telephone to come to the Sub-Registrar office, Pujabi Bagh for witnessing his will. He further deposed that he had read the contents of the Will on the same day and at that time the deceased was quite hale and hearty.
31. He further deposed in his cross examination that he reached the Sub-Registrar's office on that day on his own. His relations with Mr. Vijay Kumar Chawla/petitioner and all the family members of deceased are very cordial. In his further cross-examination he deposed that the deceased paid the stamp duty for the execution of the Will. He had met the Chawla family a lot of times, between 2010 and 2012. In his cross examination, he further deposed that in November, 2012, due to death of his uncle, he could not inform the family of the deceased about the execution of the Will, however, in February, 2013, he informed Mr. Vijay Kumar Chawla and Mrs. Usha Chawla about the execution of the Will. He did not inform Mr. Gulshan Kumar Chawla about the Will as he did not know his whereabouts.
32. In his cross examination, he further deposed that as per him, the relations between Sh. Vijay Kumar Chawla/petitioner and the deceased were very cordial. He further deposed that the deceased namely Tek Chand Chawla told him that he had drafted the Will on his own. He denied the suggestion that he was aware that Mr. Vijay Kumar Chawla had tutored the contents of the Will to the deceased.
EVIDENCE ON BEHALF OF RESPONDENT NO.2.
33. From the side of respondents three witnesses have been examined.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 12 of 5034. Sh. Gulshan Kumar Chawla/respondent no. 2 entered into the witness box as RW-1 and tendered his affidavit in evidence Ex. RW-1/A and reiterated and re-affirms the contents of his reply. He relied upon the following documents:
(i) Ex. RW1/1: Letter dated 30.03.1997 issued by Nautilus International (India) to him.
(ii) Ex. RW1/2: Letter dated 14.04.78 issued by Shipping Corporation of India in lieu of his services.
(iii) Ex. RW1/3: The contents of employment issued by Arya National Shipping Lines, Tehran from 12.06.1979 issued by him.
(iv) Ex. RW1/4: The payment order dated 15.12.1980 issued by Arya National Shipping Lines, Tehran to him.
(v) Mark A: Copy of receipt no. 119794 dated 23.08.1979.
(vi) Mark B & C: The copies of withdrawal receipt no. 118787 and 728877 respectively.
(vii) Ex. RW1/8: The withdrawal receipt no. 020146.
(ix) Ex. RW1/9: The receipt dated 09.10.1980. (x) Ex. RW1/10 & 11: The acknowledgment receipts for a bank to bank
remittance of USD 8000 vide banker's receipt no. 881565913 dated 24.01.1981 drawn on CITI Bank in Japan.
(xi) Ex. RW1/12: Payment of USD 6000 vide receipt no. D728336 dated 23.03.1978 which was given by him to his father.
(xi) Ex. RW1/13: Payment of USD 4000 vide receipt no. 930145861 dated 26.09.1980 drawn on Commerzbank, FRG in favour of his father.
(xii) Ex. RW1/14: Payment of USD 1775 vide receipt no.20061dated 26.09.1980 drawn on Commerzbank, Germany.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 13 of 50(xii) Ex. RW1/15: The floor wise site plan of the house.
(xiii) Ex. RW1/16: Photographs of the second floor of his property.
(colly) ( six in numbers) (ivx) Ex. RW1/17 & 18: Proforma of tax calculation submitted with the MCD on 25.03.1987 alongwith valuation report for the property by MCD.
(xv) Ex. RW1/19: The settlement dated 07.09.1993.
(xvi) Ex. RW1/20: The registration certificate of car No. DAJ 1393.
(xvii) Ex. RW1/21: Letter dated 24.10.1993.
(xviii)Ex. RW1/22: Water bill dated 20.12.1993 for the first and second floor of the property.
(ixx) Ex. RW1/23: Water bill dated 20.04.2011 for the first and second floor of the property.
(xx) Mark D: Copy of electricity bill dated 3.08.1993 for the first and second floor of the property.
(xxi) Ex.RW-1/24A: Electricity bill dated 8.12.1993 for the first and second floor of the property.
(xxii) Ex.RW-1/25: Electricity bill dated 29.04.2010 for the first and second floor of the property.
(xxiii)Ex.RW-1/26: Electricity bill dated 08.05.2017 for the first and second floor of the property.
(xxiv)Ex.RW-1/27: Electricity bill dated 29.01.2015 for the first and second floor of the property.
(xxv)Ex.RW-1/28: Electricity bill dated 27.02.2015 for the first and second floor of the property.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 14 of 50(xxvi)Ex.RW-1/29: Electricity bill dated 30.03.2015 for the first and second floor of the property.
(xxvii)Ex.RW-1/30: Electricity bill dated 13.03.2015 to 10.04.2015 for the first and second floor of the property.
(xxviii)Ex.RW-1/31: Passbook for the period 20.12.2015 to 23.09.2016 reflecting payment of electricity bill for the second floor of the property vide cheque no. 10001363 and 1001366.
35. In his cross-examination, he deposed that the suit property in government records stands in the name of his father/ Late Sh. Tek Chand Chawla. He further deposed that there are three electricity meters and two water connections in the suit property and all are in the name of his father and there is no partition of the suit property till date and he admitted that his father had never transferred any part of the suit property to any person.
36. In his further cross-examination, he deposed that his father never requested him in writing to support him financially. He denied the suggestion that his father never asked him for any financial support. He denied the suggestion that his father had never executed any declaration dated 18.05.1979 nor any such document is in existence. He denied the suggestion that he did not give Rs. 40,000/- and US $ 7000 to his father. He further deposed that the house was constructed from 1979 to 1980 and he was abroad at that time. He admitted that his father was in employment at the time of construction of house. He denied the suggestion that his father had never offered to transfer the built up property in his name after completion of construction of suit property. He denied the suggestion that he had never contributed any amount in construction of the suit property/house.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 15 of 5037. In his cross examination, he admitted the suggestion that his father had never executed any registered document like agreement to sell, gift deed or any other registered document in respect of suit property in his favour. He denied the suggestion that his father never intended to bequeath whole of his properties in his favour. He denied the suggestion that he has not made a total monetary contribution of Rs. 5,12,055/- to his father.
38. In his cross-examination, he deposed that he cannot comment with regard to good health of his father because most of time he stayed abroad because of his employment. He further deposed in his cross examination that he cannot comment if his father remained in sound disposing state of mind till his death. In his cross examination, he further deposed that he got to know about the Will on 18.04.2017 when he received the copy of probate petition though he was verbally informed by his mother on 16.11.2013 regarding existence of Will but he had not seen the same at that time. He admitted that he had mentioned in the proceedings before Hon'ble Delhi High Court that he got to know about the Will on 02.10.2013. In his cross examination, he further deposed that he had given a letter dated 26.03.2014 to his brother Vijay Kumar Chawla/petitioner to make him apprise that the contents of the Will are not correct. He admitted that no such letter is filed on record. He admitted that he has never challenged the Will before any other authority, prior to the present petition.
39. That Smt. Anita Chawla, wife of the respondent no. 2 appeared in witness box as RW-2 and tendered her evidence by way of affidavit Ex. RW-2/A. PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 16 of 50
40. That Mr. Darshan Kumar Chadha, the summoned witness appeared as R2W3 and Mr. Ajay Kumar, Senior Section Officer appeared as RW2W4, who proved the summoned record i.e pension file of the deceased. He deposed that as per record, the last drawn gross salary of Mr. Tek Chand Chawla at the time of his retirement was 2110 i.e. in the year 01.01.1983 and proved the relevant record as Ex. R2W4/A (Colly) (OSR).
FINAL ARGUMENTS
41. I have heard ld. Counsel for the petitioner and ld. counsel for the respondent no.2 and have perused the entire record including pleadings, documents, and testimony of the witnesses examined in the court from the both sides and also considered the written submissions as well as judgments relied upon by both the parties.
42. CONTENTIONS OF THE PETITIONER.
1. Ld. Counsel for the petitioner argued that the petitioner has duly proved the will, by examining one of the attesting witnesses namely Sh. H.C. Chawla/PW2 in court and the said witness duly identified his signatures, signatures of the deceased and signature of Sh. O.P. Malhotra, the other attesting witness of Will, on the will dated 08-07- 2010 Ex.PW-2/1.
2. He further argued that it is admitted fact that the deceased has never executed any registered document like agreement to sell, gift deed or PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 17 of 50 any other registered document for transferring the ownership of property in question in favour of respondent no.2 and he further argued that in records, the property is still in the name of the deceased.
3. He further argued that the respondent no.2 has not provided any funds for the construction of the house and no declaration dated 18- 5-1979 and no meeting dated 07-09-1993 was ever held between the deceased and the respondent no.2. He further submitted that above said declaration and meeting do not bear signatures of the deceased and the alleged signatures of deceased are forged and fabricated.
4. He further argued that respondent no.2 never cared his parents during their life time and used to fight with them.
5. Ld. Counsel for the petitioner further argued that the petitioner has successfully discharge his onus by proving the due execution of the Will and there is no suspicious circumstances surrounding the Will in question.
6. Ld. Counsel for the petitioner further argued the respondent no.2 has miserably failed to prove that the deceased was not in sound disposing mind at the time of execution of the Will and the deceased was coerced to enter into Will by the petitioner in collusion with his mother.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 18 of 507. Ld. Counsel for the petitioner further argued that there is no need to examine another attesting witness of the Will. He further argued that as per section 68 of Indian Evidence Act, one attesting witness is sufficient to prove the Will.
8. Ld. Counsel for the petitioner has relied upon the following judgments: -
1. Pashupati Nath Dass (dead) Vs Chanchal Kumar Dass (dead) by LRs & Ors, 2019 (1) CLJ, 262 (SC).
2. Jagdish Chand Sharma Vs Narayan Singh Saini (dead) through his LRs & Ors, IV ( 2015) SLT, 353.
3. Sujata Kohli Vs State & ors, 2019 (2) CLJ, 738 (Del).
4. Naveen Bhatia (since deceased) through his LRs Vs Raj Kumari Bhatia & ors, 2017 (4) CLJ, 86 (Del).
43. CONTENTIONS OF RESPONDENT NO.2
1. During arguments, Ld. Counsel for respondent no.2 submitted that respondent no.2 has provided the funds to the tune of Rs 512055/-
for the construction of the house in question and he has borne 94% expenses of the total construction expenses and in lieu of the funds provided by him, his father/the deceased offered him to transfer ownership of the house in his name, after the completion of the construction of the house.
2. He further argued that in lieu of providing funds for construction of property in question, declaration/settlement was also entered between respondent no.2 and his father on 18.5.1979 in this respect.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 19 of 503. He further argued that due to taunt of petitioner and wife of the petitioner, deceased/father of respondent no.2 has to revisit the understanding recorded in declaration dated 18.5.1979 and in the interest of harmony and peace in the family, on 07.09.1993 a meeting was held between respondent no.2 and his father and in that meeting it was decided that the first and second floor of the property would continue be in the exclusive possession of respondent no.2 and the ground floor will be in exclusive possession of deceased and other members of the family and the said settlement is Ex. RW-1/19.
4. Ld. Counsel for respondent no.2 further argued that that the respondent no. 2 is also challenging the will on the ground that it is inconceivable that his father would without force and coercion, execute the Will dated 08.07.2010 contrary to his own agreement dated 07.09.1993.
5. He further argued that father of respondent no.2, at the time of execution of the Will, was nearly 81 years old and there was no reason for the father of respondent no.2 / the deceased to deviate from their long understanding duly recorded in agreement dated 07.09.1993.
6. He further argued that father of respondent no.2 was very vulnerable and was forced and pressurized to sign the Will as his mental competence to execute the Will was questionable. He further argued that the petitioner in collusion with his mother had coerced PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 20 of 50 the deceased to enter into Will dated 08-07-2010.
7. Ld. Counsel for the respondent no.2 further argued that petitioner has failed to prove the due execution of the Will. He further argued that it is the duty of the petitioner to examine both attesting witnesses of the Will in court but he has malafidly not examined the another witness of the Will as Will was never executed by his father voluntarily with his free will.
8. Ld. Counsel for respondent no.2 further argued that the present petition is barred by severe delay and laches and deserve to be dismissed as the father of the petitioner died on 6-11-2012 and the petitioner has failed to file the present petition within the period of limitation.
9. During arguments, Ld. Counsel has placed reliance on a CD which was filed in the Court on 17.8.2023, however this CD is neither tendered in evidence on behalf of respondent no.2 nor proved in Court. This CD is also not accompanied by any certificate U/S 65 B of Indian evidence Act, hence it is inadmissible and arguments on basis of said CD cannot be appreciated while passing judgment.
44. With the written submissions, ld. Counsel for respondent No.2 has relied upon the following Judgments:-
1. Janki Naryan Bhoir Vs Narayan Namdeo Kadam, 2002 legal eagle (SC) 1107.
2. Judgment passed by Predecessor of this court titled as Vijender Singh @ Bijender Vs State & ors decided on 26.04.2018.PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 21 of 50
3. Apoline D' Souza Vs John D'Souza AIR, 2007 Supreme Court, 2219.
4. Susama Bala Devi & Ors Vs Ananth Nath Tarafdar & ors, 1976 legal eagle (CAL) 175.
5. Ashutosh Seal Vs Smt Umashasi Santra, 1984 legal eagle (CAL) 100.
6. Romeo Anacleto DSouza Indian Christian Inhabitant Vs Edgar Havlock DSouza Canadian Citizen through his C.A. Joyce Cardoz 2013, legal eagle (BOM) 3730.
7. H. Venkatachala Iyengar Vs B.N. Thimmajamma, 1958 legal eagle (SC)
143.
45. In the present petition, the petitioner is seeking Probate of the Will dated 08.07.2010. In such type of petition, the prime consideration is to find out and assess whether the Will, on the basis of which the petitioner is seeking Probate, has been duly proved or not. Such Will has to be proved in accordance with the provisions contained in Indian Evidence Act as well as Indian Succession Act. In a proceeding for the grant of probate or for the grant of Letters of Administration with a Will annexed, the Court exercising testamentary jurisdiction is not concerned with title of property. In determining whether probate should be granted, the Court determines only upon the genuineness and due execution of the Will. Determinations on issues of title are alien to probate proceedings. Even question whether property existed or not is also not to be considered by the probate court and court is only to see whether Will in question is genuine and validly executed or not.
STATUTORY PROVISIONS INVOLVED IN THE PRESNT CASE.
46. Before adjudicating the issues, I would like to discuss various relevant statutory provisions on the point involved in the present case.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 22 of 5047. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death".
Section 59 of Indian Succession Act declares that every person (not being a minor) "of sound mind" may dispose of his property by Will.
48. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 23 of 50 attestation shall be necessary".
49. The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters.
"Section 68 of Indian Evidence Act states that 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 and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of Indian Registration Act 1908 unless its execution by the person by whom it purported to have been executed is specifically denied.
ISSUE -WISE FINDING
50. My issue wise findings are as under:-
Issue no.(1) and Issue no. (6).
Issue no. (1) Whether the Will dated 08.07.2010 executed by late Sh. Tek Chand Chawla S/o Sh. Tirath Ram Chawla is his last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP Issue no. (6) Whether the Will dated 08.07/2010 was entered by late Shri Tek Chand Chawla under coercion and undue influence and legally valid and enforceable or not? OPR2
51. Both these issues are being taken up together as they are interconnected. The onus to prove issue no. 1 is upon the petitioner and to PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 24 of 50 prove this issue, petitioner has examined himself as PW1 and has examined Sh. H.C. Chawla as PW2, who is one of the attesting witnesses of the will in question.
52. PW1 has deposed in his affidavit that his father Late Sh. Tek Chand was residing at 29/12, Punjabi Bagh Extn. New Delhi and the said house along with movable property has been bequeathed by his father vide registered Will dated 8.7.2010 and his father died on 6 November 2012 and he proved his death certificate exhibit PW1/3.
53. He further deposed that as per registered Will, the petitioner will get entire ground floor, the responded No. 2 will get first floor and Smt. Usha Chawla (who was earlier respondent No. 3 and died on 22.03.2022) will get second floor of the property in question along with other movable properties like bank account et cetera. He further deposed that the registered Will dated 8 July 2010 is the last Will of his father and it has been executed by his father in the presence of witnesses appearing on the Will. He further deposed that that he has been appointed as an executor in the Will by his father.
54. In his cross examination, he deposed that he was not aware about the execution of the Will in the year 2010 and he was told about the Will of his father by his cousin Mr. H.C. Chawla, after the death of his father, in the year 2013. He further deposed in his cross examination that his father was not suffering any ailment before his death. He further deposed in his cross-examination that at the time of execution of the Will he was in Bombay as he was posted in Bombay. He denied the suggestion that he was involved in preparation of the Will in question.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 25 of 5055. As per testimony of PW1, he was in Bombay at the time of execution of the Will in question and he came to know about the Will only in year 2013, after the death of his father, from Sh. H.C. Chawla, one of the attesting witness of Will. PW-2 Sh. H.C. Chawla deposed in his cross- examination that in Feb. 2013 he informed Mr. Vijay Kumar Chawla and Mrs. Usha Chawla about the execution of the Will. The testimony of PW1 has been corroborated with the testimony of PW2 regarding above said fact and the respondent no.2 has not brought any evidence to disprove the above said facts of the knowledge of petitioner first time about the Will in year 2013.
56. As per PW-1 he was in Bombay at the time of execution of Will and PW-2 also did not state about the presence of petitioner at the time of execution of the Will and no question has been put to PW2 regarding presence of petitioner at the time of execution of the Will. Respondent no.2 has failed to prove that petitioner was in Delhi at the time of execution of will and was involved in the preparation of will. So there is no reason to disbelieve the statement of PW-1 to this effect that he was present in Bombay at the time of execution of the Will.
57. In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. In Civil Appeal No. 3351 of 2014, decided on 21 September 2023, the Hon'ble Apex Court has deduced the principles in order to prove the Will and the same are as under; -
i. This court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 26 of 50ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a) 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 the said signature or affixation shall show that it was intended to give effect to the writing as a Will:
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures:
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 27 of 50 called to supplement his evidence:
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real' germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstances raising suspicion legitimate in nature would quality as a suspicious circumstances for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 28 of 50 propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
58. In view of the above said statutory provisions as well as the above said judgment of the Hon'ble Apex Court, it is obligatory for any propounder of the Will to prove the following essentials:
(i) That the Will in question is a legal declaration of the intention of the deceased:
(ii) That the testator while executing the Will was in the sound and disposing state of mind:
(iii) That the testator has executed the Will of his own free will meaning thereby that he was a free agent when he executed the Will:
(iv) That the propounder has also to remove all the suspicious circumstances, if any surrounding the Will to the satisfaction of the conscious of the Court:
(v) For proving the Will, one attesting witness of the Will must be examined in the Court.
59. To prove will dated 08-07-2010, petitioner has examined PW2/ Sh. H.C. Chawla, who has exhibited the original Will in his evidence as Ex- PW2/1. During his testimony, He identified the signatures of the deceased/testator at point A, his signatures at point B and signatures of other attesting witness Sh. O.P. Malhotra at point C, on the original Will Ex. PW-2/1 in Court. In his affidavit, he deposed that he is well-known to Late Sh. Tek Chand Chawla being his nephew and on 8 July 2020 Late Sh. Tek Chand Chawla had executed the Will exhibit PW2/1.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 29 of 5060. PW2 has further deposed that Late Sh. Tek Chand Chawla had voluntarily executed the said Will, in his sound disposing mind and memory and with his free will, without any pressure or coercion. He further deposed that he put his signature and thumb impression on the Will in presence of Late Sh. Tek Chand Chawla and Sh. O. P. Malhotra. He further deposed that Late Sh. Tek Chand Chawla and Sh. O. P. Malhotra had put their signatures and thumb impression in presence of each other on the Will.
61. PW 2 was cross-examined at length. However, he withstood the scrutiny and a very important aspect of his cross-examination is that no suggestion has been put to the Witness that signatures and thumb impressions of the purported testator are not of Late Sh. Tek Chand Chawla or that the deceased has not put his signatures and thumb impressions on the Will in the presence of PW2 and other witness or that PW2 and other witness have not put their signatures on the Will in the presence of deceased. No suggestion has been given to PW2 in his cross examination that the deceased never appeared before Sub registrar for registration of Will or that PW2 was not called by the deceased or that Will in question was not drafted by the deceased and stamp duty was not paid by the deceased or that at that time the deceased was not quite hale and hearty. No question/suggestion on these aspects has been put to PW2. The evidence of PW 2 on the above aspects has remained unrebutted and unchallenged. Meaning thereby that Respondent No.2 has not disputed the signatures and thumb impressions of the deceased on the Will dated 08-07-2010, registration of Will, calling of PW2 by the deceased, drafting of Will by the deceased on his own and payment of stamp duty by the deceased and the PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 30 of 50 fact that the deceased was hale and hearty at the time of execution of Will, reliance is placed upon the judgements given by Hon'ble Apex Court in cases titled as Muddasani Venkata Narsaiah v. Muddasani Sarojana, AIR 2016 SC 2250 and Arvind Singh v. State of Maharashtra, AIR 2020 SC 2451.
62. The Hon'ble Apex Court in a case titled Muddasani Venkata Narsaiah v. Muddasani Sarojana, AIR 2016 SC 2250 has observed as follows " 16. Moreover, there was no effective cross-examination made on the plaintiff's witnesses with respect to factum of execution of sale deed, PW.1 and PW-2 have not been cross examined as to factum of execution of sale deed. The cross-examination is a matter of sub- stance not of procedure one is required to put one's own version in cross-examination of opponent. The effect of non cross-examination is that the statement of witness has not been disputed".
63. The Hon'ble Apex Court in a case titled as Arvind Singh v. State of Maharashtra, AIR 2020 SC 2451, 2021-11 SCC, has relied upon its earlier judgement given in a case titled as State Uttar Pradesh vs Na- har Singh (Dead) & Ors on 18 February, 1998 in which it is held that "
in the absence of cross-examination on the explanation of delay, the evi- dence of PW-1 remained unchallenged and ought to have been believed by the High Court. Section 146 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. This Court held as under: -
"13. It may be noted here that that part of the statement of PW 1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence of PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 31 of 50 PW 1 remained unchallenged and ought to have been believed by the High Court. Section 138of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned:
(1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."
64. In order to prove issue no. 6, respondent no.2 has examined himself as RW1 and has deposed in his affidavit that his father late Sh. Tek Chand Chawla did not have requisite funds to construct a home at the plot and estimate for construction of the plot was over Rs. 1 lac and being his elder son, his father approached him for funds for the construction of the house. He further deposed that his father offered to transfer the property in question in his name after the completion of the construction in lieu of the funds provided by him. He further deposed that his father had executed a declaration dated 18.05.1979 in which it is recorded that he had given a loan of Rs. 40,000/- and US dollar 7000 to his father for construction of the house in question. And this declaration was executed by his father in view of the understanding arrived between him and his father that after completion of the construction of the house in question, the said house will be transferred in the name of respondent no. 2 after completion of construction. He further deposed that the said declaration has also been signed by his mother and his brother Sh. Vijay Kumar Chawla/petitioner as witnesses.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 32 of 5065. RW1 further deposed that the said declaration was earlier in possession of his father and now in the possession of petitioner and respondent no. 3 and said declaration is marked as Mark A. He further deposed that he had given total amount of Rs. 5,12,055/- to his father for the construction of above said house as well as for other house hold expenses and he provided the detail of said payment vide document Ex. RW-1/5 to 14. He further deposed that as he had to frequently travel because of his job, his wife resided on the first and second floor of the house. He further deposed as he has to frequently travel due to his employment, he thought it best that his parents continued to reside with his brother/the petitioner. He further deposed that although it was decided that the entire house will be transfer in his name however as a gesture of goodwill he never objected occupation of the ground floor of the house by the other members of the family and due to utter faith in his father he did not insist to the transfer of plot of the house in his name.
66. He further deposed that whenever he visited India during his breaks, he observed that his brother Vijay Kumar Chawla/petitioner and his wife Ms Kusum Chawla would constantly taunt the deceased about owing a part of the said plot. He further deposed that they were unhappy due to the fact that deceased had declared that in view of payment for the entire construction of the house made by respondent no.2, he will transfer the house in the name of respondent no. 2. He further deposed that Ms Kusum Chawla would constantly taunt the deceased that her father died as the deceased had not transferred the second floor to her and to the petitioner and they both kept fighting with his father for the second floor of the property in question.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 33 of 5067. He further deposed that in the interest of harmony and peace in the family, on 07.09.1993 a meeting was held between him and his father under the mediation of Sh. Lakhbir Singh and Sh. Darshan Lal, Secretary and President of Jan Kalyan Samiti and the other members of the family were also present. He further deposed that in that meeting it was decided that the first and second floor of the property would continue be in his exclusive possession and the ground floor will be in exclusive possession of his father and other members of the family and the said settlement is Ex. RW-1/19. He further deposed that in performance of the said settlement dated 7.9.1993, the ownership of car no. DAJ 139 was transferred in his name by his father and a certificate of car is Ex. RW-1/20. He further deposed that in pursuance of above said settlement his father wrote a letter dated 24.10.1993 regarding issue of car parking and the said letter is Ex. RW-1/21. He further deposed that in pursuance of settlement dated 7.9.1993, he is in continued uninterrupted possession of the first and second floor of the house in question and he also placed on record water and electricity bills of first and second floors, paid by him which are Ex. RW-1/22 to 30.
68. He further deposed that he came to know about the purported Will on 16.11.2013 through his mother Ms Usha Chawla but she did not give a copy of the said Will and his mother also told him that he has been given first floor by his father in the Will. He further deposed that it is inconceivable that his father would without force and coercion execute the Will dated 08.07.2010 contrary to his own agreement dated 07.09.1993. He further deposed that at the time of execution of the Will his father was nearly 81 years old and there was no reason for his father to deviate from PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 34 of 50 their long understanding duly recorded in agreement dated 07.09.1993. He further deposed that his father was very vulnerable and was forced and pressurized to sign the Will as his mental competence to execute the Will was questionable. He further deposed that in view of his objections on the Will, from November, 2013, the petitioner did not act upon the Will of his father and on 18.04.2017 after about five years when he received the summons of present case, he was shocked. He further deposed that due to said case filed by the petitioner, he was constrained to file civil suit for declaration of that settlement/understanding dated 7.9.1993 that he was owner and in possession of second floor. He further deposed that out of love and affection, he had abided by the agreement/understanding dated 7.9.1993 for the sake of peace of the family although he had contributed 94% of the funds for the construction of the property in question.
69. In his cross examination, RW1/ Respondent No. 2 admitted that his father had never executed any registered document like agreement to sell, gift deed or any other registered document in respect of suit property in his favour. He further admitted that in the records of society, the property in question stands in the name of Late Sh. Tek Chand Chawla. Hence it is admitted fact that the deceased was the owner of the property in question at the time of his death.
70. RW-2 has deposed that after the birth of her first child, who was born in 1983, she permanently shifted to first and second floor of the house in question. She further deposed that soon after the marriage of the petitioner with her sister-in-law, Ms Kusum Chawla, her sister-in-law started taunting the deceased that her father died because deceased did not PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 35 of 50 give the second floor of the property in question to her husband/petitioner and she further deposed that her sister in law incessantly fight with the deceased about the second floor of the property. She further deposed that the deceased told her sister in law that as per declaration/settlement dated 18.05.1979, the entire house/property would be transferred in the name of respondent no. 2. She further deposed that on 07.09.1993 a meeting was held between her husband/respondent no.2 and the deceased under the mediation of Sh. Lakhbir Singh and Sh. Darshan Lal, Secretary and President of Jan Kalyan Samiti and the other members of the family were also present. She further deposed that in that meeting it was decided that the first and second floor of the property would continue be in the exclusive possession of her husband/respondent no.2 and the ground floor will be in exclusive possession of her father in law and other members of the family.
71. RW-3 Mr. Darshan Kumar Chhadha deposed that Late Sh. Tek Chand was his neighbour and he knew him since 1988 and they were on visiting terms. He further deposed that he had seen the property in question where Mr. Tek Chand Chawla used to live. He further deposed that he has no knowledge if there was any settlement arrived in the family of Mr. Tek Chand Chawla. He further deposed that he was present when an agreement had been made between Darshan Lal and Mr. Lakhbir Singh at the house of Mr. Lakhbir Singh. He further deposed that he has not read the said agreement thus he does not know what was it about. He further deposed that the date of said agreement was 7.9.1993 and at that time, none other than Mr. Lakbir Singh, Darshan Lal and he were present.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 36 of 5072. That I have perused the photocopy of declaration dated 18.5.1979 purported to be signed by the deceased in which it is mentioned that the whole amount for the construction of the house will be borne by the son of deceased namely G.K. Chawla and upon completion of the construction of the house, the house shall be transferred in the name of his son G.k. Chawla who is fully financing the construction and this declaration has been marked as Mark A, in the cross examination of PW1/Petitioner, who denied the signature on Mark A as that of his father and he also denied the execution of Memorandum Mark A by his father.
73. The Respondent No.2 has mentioned this declaration Mark A in his affidavit but while tendering his affidavit he relied upon several documents but has not relied upon Mark A. He has not made any efforts to bring the original of Mark A on record. He has not examined any witness to prove the signature of deceased on it and to prove this document. He failed to prove Mark A.
74. That I have perused the photocopy of the letter purported to be written by deceased to Hon'ble secretary, (Sh. Lakhbir Singh), Jan Kalyan Samita (regd.) signed on 15.8.1993 and filed by Respondent No.2 in the court on 09-10-2018, however he has not tendered this letter in his evidence. Though this letter has never been tendered in evidence by respondent no.2 but as this letter is filed by the respondent no.2 himself, he is not disputing its contents and genuineness.
It is written in this letter as follows:
I. I have never denied receiving financial help from my elder sonMr. G.k. Chawla for constructing the house and that is why I have given him two floor, ( 1st and 2nd floor).PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 37 of 50
II. I am surprised and pained to note that my elder son is telling me, how he made me sign the so called agreement. At that time he told me that it was a mere formality in order to save the gift tax for giving me financial help for the construction otherwise tell me why a man would buy a land and spent 1 and ½ years of his life in the construction of a house on it only to give it away to one son, taking away his own old age security and my wife's security and other children's right and interest.
III. It is absolutely wrong that he never pressurized me to implement the so called agreement. For the past seven years, I am trying to tell my elder son Mr. G.k. Chawla that by giving me threats of enforcing the so called agreement is breach of trust and faith in him as a son. His behavior has ensued me sorrow, shame and anger that my own son is trying to prove me dishonest and liar.
IV. The allegations against my younger daughter in law Ms Kusum chawla are totally false.
75. That I have perused minutes dated 7.9.1993 and as per these minutes, Ist and IInd floor are in the exclusive possession of Sh. G.K. Chawla. Sh Tek Chand Chawla has given undertaking that this will be done by him in his Will irrevocable in respect of first floor and second floor and ground floor shall be in the exclusive possession of deceased and other family members.
76. That in this case, the Court is not concerned with as to who is in possession of house in question. This question whether deceased entered into settlement dated 18.5.1979, and whether deceased agreed to transfer first floor and second floor in the name of respondent No.2 are not in issue in this case and findings on these questions are not required for deciding the present case. In the present petition, what is germane for this Court to decide is whether the Will in question is a genuine and legal one and PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 38 of 50 whether the testator was having sound disposing mind at the time of signing and attestation of the Will and whether the Will has been voluntarily executed by the testator, with his free will and without any coercion and undue influence.
77. It is settled law that probate court is only concerned with the genuineness of will. Probate court is to decide whether Will in question is legal, valid and genuine Will. Reliance is place upon judgment of Hon'ble Apex Court titled Krishna Kumar Birla vs Rajendra Singh Lodha & Ors on 31 March, 2008 and in this judgement, it is held by Hon'ble Supreme Court that.
"The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the Will."
"A question of title arising under the Act cannot be gone into the proceed- ings. Construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court.".
78. That the deceased has bequeathed his property in question to the petitioner, respondent no. 2 and Smt. Usha Chawla. Respondent no.2 has not been excluded from inheritance by deceased in his Will. If deceased was under coercion of petitioner and of his wife, then he would have excluded respondent no. 2 from inheritance in his Will. The sister/respondent no. 3, who is excluded from inheritance in the Will has given no objection in favour of petitioner for grant of probate. There are no suspicious circumstances surrounding the execution of Will. The Will is duly registered and genuineness of Will is further confirmed by its registration.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 39 of 5079. In a judgment of Hon'ble Apex Court titled Meena Pradhan ( Supra) it is held that "One who alleges fraud, fabrication, undue influence etcetera has to prove the same.
80. In a case titled as Savithri & Ors Vs Karthyayani Amma & Others, AIR 2008 SC 300 decided on 12/10/2007, Hon'ble Apex Court observed that :-
60."We may however notice that according to the appellants themselves, the signature of the testator on the Will was obtained under undue influence or coercion. The onus to prove the same was on them. They have failed to do so if the propounder proves that the Will was signed by the testator and he at the relevant time was in sound disposing state of mind and understand the nature and effect of disposition, the onus stands discharged".
81. As per the above said judgments the burden is upon the person who alleged that the Will has been executed by testator by putting under undue influence or coercion upon him. In this case, respondent no. 2 is alleging that petitioner in collusion with his mother has coerced the testator to execute the Will dated 08.07.2010 so the burden is upon respondent no. 2 to prove this fact.
82. The declaration is of dated 18 May 1979 and the alleged meeting was held on 07.09.1993 to revisit the terms of settlement and Will in question is of 08 July 2010, so there is a long- time gap of about 31 years between the said declaration and will and of 17 years from meeting dated 07.09.1993 to act upon if deceased wanted to act upon and transfer ownership of the house or first and second floor of the house in the name of respondent no.2. It is also admitted fact that deceased has not transferred the property in question in the name of respondent No. 2 and no document PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 40 of 50 regarding the transfer of property has been executed in favour of respond No. 2. Respondent no. 2 has admitted that his father used to reside with his son/ petitioner at the ground floor and the last rites of deceased were also performed by petitioner. Respondent no.2 has also deposed that he used to remain out of India due to his job.
83. That the letter dated 24/10/1993 is giving the impression that the relations between respondent no.2 and deceased were not cordial. If these were cordial then the deceased can orally say to respondent no. 2 to remove car from the ground floor, in the morning and parked inside in evening. There was no need to write letter to his son for this purpose. More over PW1 clearly depose in his evidence that there were no cordial relations of respondent no. 2 with his father. The letter purported to be written by deceased to Hon'ble secretary, (Sh. Lakhbir Singh), Jan Kalyan Samita (regd.) signed on 15.8.1993 which is filed by respondent no.2 though not tendered in evidence is also pointing out that the relations between respondent no.2 and deceased were not good.
84. The contentions of respondent no.2 that the petitioner has failed to prove the due execution of the Will as the petitioner has not examined both the attesting witnesses of the Will does not hold any force. As per section 68 of Indian Evidence Act, one attesting witness is required to be examined for proving the Will. PW2/ Sh. H.C. Chawla has deposed in court that the deceased had voluntarily executed the said Will, in his sound disposing mind and memory and with his free will, without any pressure or coercion. He further deposed that he put his signature and thumb impression on the Will in presence of Late Sh. Tek Chand Chawla PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 41 of 50 and Sh. O. P. Malhotra. He further deposed that Late Sh. Tek Chand Chawla and Sh. O. P. Malhotra had put their signatures and thumb impression in presence of each other on the Will. Hence in the light of testimony of Sh. H.C. Chawla /PW2, there is no requirement for the petitioner to examine second attesting witness of the Will.
85. The petitioner has discharged the initial burden of proving the Will by examining himself and one of the attesting witnesses of the Will in question. The burden is upon respondent no. 2 to prove that deceased was coerced to enter into Will by petitioner in collusion with his mother and the deceased was not having sound disposing mind and Will is not executed by him voluntarily with his free will but respondent no.2 has failed to bring any evidence to prove this fact. He failed to demonstrate any circumstances which raised even any suspicion on the voluntariness and mental incapacity of testator to execute the Will. Rather In his cross examination, respondent no.2 deposed that he cannot comment with regard to good health of his father because most of time he stayed abroad because of my employment. Respondent no.2 further deposed in his cross examination that he cannot comment if his father remained in sound disposing state of mind till his death. Respondent no.2 has not denied about the good health and sound disposing state of mind of his father till his death. PW2 has specifically deposed that deceased had voluntarily executed the said Will in his sound disposing mind and memory and deceased was hale and hearty at that time. Hence in the light of the testimony of PW1 and PW2 and no denial on the part of respondent no.2 about above facts, it is proved that deceased was having sound disposing mind at the time of execution of Will and he was hale and hearty at that time.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 42 of 50Therefore, in view of my foregoing discussion, I hold that Will ExPW2/1 is valid, legal and genuine will. Hence issue no.1 and 6 are decided in favour of petitioner and against respondent no.2.
86. Finding on Issue No.2 Issue No. 2: Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 2 in the reply/objections? OPR.
The objections raised by respondent no.2 in his reply is that the petition is ought to be dismissed since the petitioner has failed to comply with section 276(a) and (d) of Indian succession Act and the petitioner has not disclosed the entire facts and circumstances to the Hon'ble court and has suppressed material facts which are essential for a just decision of the present case. It is further contended by respondent no.2 that the present petition is a mala fide attempt on the part of the petitioner to usurp the property of the answering respondent.
The ld. Counsel for the respondent no. 2, during arguments, has not made any submissions on this issue as to how the petition is barred by sec 276 of Indian succession Act.
Sec 276 of Indian succession Act states that Petition for probate.-- (1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating--
(a) the time of the testator's death, PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 43 of 50
(b) that the writing annexed is his last Will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the petitioner's hands, and
(e) when the application is for probate, that the petitioner is the executor named in the Will.
(2) In addition to these particulars, the petition shall further state,--
(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.
(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.
87. The respondent no. 2 has failed to prove that the petition is barred by section 276 of Indian Succession Act and the petitioner has suppressed material facts and the present petition is a mala fide attempt on the part of the petitioner to usurp the property of the answering respondent. The petitioner has been appointed as executor by the deceased in his will and as already held above that the petitioner has proved the due execution of the will and the will is legal, valid, genuine and the last will of deceased. Hence this issue is decided against the respondent no. 2 and in favour of the petitioner.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 44 of 5088. Finding on Issue no.4 Issue no. 4: Whether the present Probate Petition is barred by Limitation? OPR2 Burden of proof of issue No. 4 is upon respond No. 2. Ld. Counsel for respondent no.2 argued that the present petition is barred by severe delay and laches and deserve to be dismissed. It is argued that the father of petitioner died on 6-11-2012 and the petitioner has failed to file the present petition within the period of limitation.
89. In order to prove this issue responded No. 2 has deposed in his affidavit that in view of his objections raised in 2013, the petitioner did not act upon the will in question and on 18-04-2017, after 5 years, when he received the summons of the present case, he was shocked and he was constrained to file civil suit for declaration of settlement/understanding dated 7-9-1993.
90. Ld. Counsel for the petitioner has countered the aforesaid arguments and submitted that the petition is within limitation. He further submitted that respondent no. 2 has not proved that when he objected the will and moreover respondent no.2 has never challenged the will before any authority and has not filed any case for declaring the will null and void.
91. I have perused judgment of Hon'ble apex court titled Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and Others (2008) 8 SCC 463, in which it is observed by hon'ble Apex Court that Commencement of cause of action for the purposes of limitation would not be the date of the death of testatrix but would be the date of denial of the PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 45 of 50 validity of such Will by the respondents. Since the respondents has nowhere alleged or deposed that he had at any prior point of time challenged the Will, it cannot be said that the petition is barred by law of limitation. Thus, delay in filing the petition, by itself, would not create any suspicion of any kind whatsoever. In a proceeding seeking grant of probate or letters of administration, no right is asserted or claimed by the applicant. The author of the testament bestows duty with regard to the administration of his estate and the applicant for probate or letters of administration seeks mere permission of the Court to perform that duty. There is only a seeking of recognition from the Court to perform the duty. Such right is virtually a continuous right which can be exercised any time after the death of the deceased as long as the right to do so survives. By the very nature of the proceedings it is a continuing right. Delay in such type of matters cannot be equated with the absolute bar of limitation and once the execution and attestation are proved, suspicion of delay no longer operates.
92. It was the contention of the objecting respondent that since the letter of Probate has been sought much after the death of the purported testator and same should have been filed within 3 years of the death of the testator, the petition is barred by law of limitation. It is not in doubt that law of limitation is applicable to Probate Petitions. The schedule appended to the Limitation Act i.e. Part II-Other Applications, Article 137 thereof lays down a period of 3 years in such matters. However, it has been held by the Hon'ble Supreme Court in the above said case that such limitation will commence from the time when an objection is raised regarding the authenticity of the Will.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 46 of 5093. In order to substantiate the plea of petition being barred by limitation, the respondent no.2 is expected to demonstrate that he had disputed the Will much earlier and that despite the same, the petitioner slept over the matter. Nothing of that kind has been proved by respondent no.2. It is admitted by respondent no. 2 in his cross examination that he has never challenged the Will before any authority prior to the present petition. Thus, respondent no.2 has not disputed the Will before filling of present suit.
94. As per the above judgment of Hon'ble Apex Court, commencement of cause of action for the purposes of limitation would not be the date of the death of testatrix but would be the date of denial of the validity of such Will by the respondent no.2 and Such right of probate of will is virtually a continuous right which can be exercised any time after the death of the deceased as long as the right to do so survives. In view of the above said observation it is held that respondent no. 2 failed to prove that the petition is barred by limitation. Hence issue no. 4 is decided against the respondent no. 2 and in favour of the petitioner.
95. Finding on Issue no.5 Issue No. 5: Whether the petitioner has the locus standi to file the present petition? OPR2.
96. The onus of this issue is upon respondent no.2. The petitioner is a son of deceased and beneficiary in the will in question. Petitioner has been appointed executor by the deceased in his will. Section 222 of Indian succession Act states that. Probate only to appointed executor. --
(1) Probate shall be granted only to an executor appointed by the Will.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 47 of 50(2) The appointment may be expressed or by necessary implication. Illustrations
(i) A Wills that C be his executor if B will not. B is appointed executor by implication.
(ii) A gives a legacy to B and several legacies to other persons among the rest to his daughter-in-law C, and adds "but should the within-named C be not living I do constitute and appoint B my whole and sole executrix". C is appointed executrix by implication.
(iii) A appoints several persons executors of his Will and codicils and his nephew residuary legatee, and in another codicil are these words,--"I appoint my nephew my residuary legatee to discharge all lawful demands against my Will and codicils signed of different dates". The nephew is appointed an executor by implication.
97. As per sec 222 of Indian succession Act, probate of Will can be granted only to the executor appointed in the Will by deceased. The petitioner has been appointed executor in will by deceased so the petitioner has the locus standi to file the present petition. Consequently issue no. 5 is decided against the respondent no.2 and decided in favour of the petitioner.
98. Finding on Issue no. 7 Issue no. 7: Whether the petitioner has not paid the appropriate court fees and the present petition is not maintainable? OPR2 The onus of proof of this issue is upon respondent no.2. The respondent no.2 has failed to demonstrate that how much court fee is payable on the probate petition. Court Fee of Rs.2/- has been affixed on the petition by the petitioner. It is settled law that Petitioner is liable to pay court fee on the value of immovable and movable properties which have been bequeathed in the Will by the testator. But petitioner is not required to PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 48 of 50 pay court fee along with the petition for probate. Petitioner is obliged to pay court fee when the Court decided the petition in his favour and held the Will in question is the legal valid, genuine and last Will of the testator and thereafter court fee has to be paid by petitioner for issuance of Probate certificate in his favour.. In view the same this issue is decided against the respondent no.2 and in favour of the petitioner.
99. Findings on Issue no.2 Issue no. 2: Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP
100. All the remaining issues are decided in favour of the petitioner and against the respondent no.2. It has already held above that the Will dated 08.07.2010 is a valid, legal and genuine Will. Since the petitioner has been appointed as executor in the said Will, he is entitled for Probate of the Will dated 08.07.2010. Hence, issue no.2 is decided in favour of petitioner and against the respondent no. 2.
Relief
101. In view of above discussion and findings, the present petition is allowed and it is ordered that Probate of the registered Will dated 08-07- 2010, be issued to the petitioner under the seal of this court in the form set forth in Schedule VI of The Indian Succession Act 1925, subject to completion of requisite formalities such as:
(i) furnishing of requisite court fees on the value of the movable and immovable properties of the testator, coming into the hands of petitioner as an executor as per Will dated 08.07.2010. The valuation in respect of immovable property i.e. property bearing 29/12, Punjabi Bagh Extn. New PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 49 of 50 Delhi has already been assessed as Rs.3,01,30,324/- (Rupees Three Crores One Lakh Thirty Thousand Three Hundred Twenty-Four only) by the Collector of stamps Punjabi Bagh.
(ii) and further subject to furnishing of the valuation of the movable properties of the testator, coming into the hands of petitioner as an executor as per Will dated 08.07.2010, duly certified by the Government Valuer, in the form set forth in the Third Schedule to the Court Fees Act as required by Section 19-1(i) Court-Fees Act, 1870.
(iii) and further subject to furnishing of administration-cum-surety bond to the amount of the value of movable and immovable properties of the deceased.
(iv) Further, the petitioner is directed to file the inventory of movable and immovable property within six months and final statement of account within one year from the date of receipt of formal certificate of Probate of the Will. The formalities of issuance of Probate of the Will, be completed within six months from the date of the judgment as per Section 290 & 291 read with Section 317 of Indian Succession Act.
102. File be consigned to the Record Room after making all the necessary compliance and due formalities.
SHIV Digitally signed by
SHIV KUMAR
KUMAR Date: 2023.11.02
17:27:15 +0530
Announced in the open court (Shiv Kumar )
On 01-11-2023 Addl. District Judge-02 (West)
Tis Hazari Courts
Delhi.
PC No. 17/17 Vijay Kumar Chawla Vs State & Ors. Page 50 of 50