Delhi District Court
Smt Geeta Dhingra @ Geetha Dhingra vs State on 22 February, 2020
IN THE Court OF SH. HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE-02, SOUTH-WEST DISTRICT,
DWARKA CourtS, NEW DELHI
CS DJ ADJ No. 08/2019
CNR No.DLSW010015532019
IN THE MATTER OF:
1. Smt Geeta Dhingra @ Geetha Dhingra
W/o Sh Vinjay Dhingra
R/o - D1C-63B, First Floor
Janak Puri, New Delhi - 110058
Also at--
I-52, Old Double Story
Lajpat Nagar - IV
New Delhi - 110024 ... Petitioner
VERSUS
1. State
The NCT of Delhi ... Respondent
Date of institution of the petition : 31.01.2019
Date of arguments : 22.02.2020
Date of pronouncement : 22.02.2020
JUDGMENT
1. The petitioner namely, Geeta Dhingra @ Geetha Dhingra is the propounder of the will dated 14.06.2018 (hereinafter "the will") of her deceased sister namely, Kailash Dhingra (hereinafter "testatrix") and P.C. No. 08/2019 Page 1 of 12 has preferred a petition under Section 276 and 278 of the Indian Succession Act, 1925 (hereinafter "the Act") for grant of letters of administration of immovable property with regard to the will, as per which the petitioner is entitled to the estate of the immovable property
- LIG Flat NO. DIC - 63B, First Floor, Janak Puri, New Delhi - 110058( hereinafter "subject property").
2. At the outset, this Court observes that in the will under question no executor has been appointed. Section 222 of the Act provides that probate can only be granted to an executor appointed by the will. During the course of submissions it has been admitted by the Ld. counsel for the petitioner that no executor has been appointed in the will by the testatrix (sister of the petitioner herein). Accordingly, probate cannot be granted.
3. However, Section 232 of the Act provides that when deceased has made a will, but has not appointed an executor, or deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testatrix or before she has proved the will, or executor dies after having proved the will, but before she has administered all the estate of the deceased, a universal or a residuary legatee can be admitted to prove the will, and letters of administration with the will annexed may be granted to her of the whole estate. It is observed that Section 278 of the Act is the relevant Section which deals with the applications for letters of administration. The petitioner before this Court is the beneficiary under the will dated 14.06.2018. Accordingly, by virtue of Section 232 read with Section 278 of the Act, the present petition is treated under Section 278 of the Act - See P.C. No. 08/2019 Page 2 of 12 Sanjay Suri v. State & Ors.1
4. The petitioner has averred in the petition that deceased Kailash Dhingra was her full blood sister and she got married to Sh Krishan Kumar Dhingra and from their wedlock no child was born. In short, Krishan Kumar Dhingra and Kailash Dhingra died issueless. It is further averred in the petition that the husband of the testatrix had predeceased her and died on 03.05.1986 and after the death of husband of testatrix it was the petitioner, who looked after the daily needs of testatrix. The testatrix executed her last and final will dated 14.06.2018 in favour of petitioner wherein she had bequeathed her share in immovable property in favour of petitioner. The petitioner has averred in the petition that the testatrix - sister of the petitioner died on 28.07.2018 in perfect state of physical and mental health, who without any pressure, influence bequeathed the above property in favour of the petitioner by way of will in question. The attesting witnesses to the will were Sh. Kumar Khemani and Sh Sanjay Kumar.
5. The Court on 02.04.2019 issued notice of the petition to near relatives as per the list of relatives filed by the petitioner, citation was published in English daily 'Statesman' and Hindi daily 'Veer Arjun', and also to the concerned Collector/SDM for filing the valuation report of the immovable properties in accordance with law for 01.06.2019.
6. In response to notice issued to the close relatives, Smt. Raj Kumari (full blood sister of petitioner), T.Shyam Guneta (full blood brother of petitioner) and Ashok Kumar (full blood brother of 1 2003 (71) DRJ 446 P.C. No. 08/2019 Page 3 of 12 petitioner) appeared in Court and recorded their no-objection statements in favour the petitioner.
7. The petitioner has examined two witnesses i.e. petitioner herself as PW-1 and Sh Kumar Khemani - attesting witness to the witness as PW-2.
8. The petitioner tendered her evidence on 20.08.2019 by way of an affidavit Ex.PW1/A. The petitioner relied upon the following documents:
S.No. Documents Marked as Particulars of Documents
1. Ex.PW-1/1(OSR) conveyance deed dated 09.05.2018
2. Ex.PW1/2(OSR) death certificate of Late Kailash Dhingra
3. Ex.PW1/3(OSR) death certificate of Late K.K.Dhingra
4. Ex.PW1/4(OSR) Aadhaar card of Late Kailash Dhingra
5. Ex.PW1/5(OSR) Aadhaar card of petitioner
6. Ex.PW1/6 will dated 14.06.2018
9. Sh. Kumar Khemani (PW2), who is the attesting witness of the will, recorded his statement that the will dated 14.06.2018 was signed by the testatrix Kailash Dhingra in his presence. He further deposed that the testatrix was in good physical health and mental state of mind at the time of execution of will. PW-2 also identified the signature of testatrix at point 'A', his signature at point 'B' and signature of one more attesting witness at point 'C'.
10. The notice was also issued to the concerned Collector/SDM to file valuation report in response to which SDM, Delhi Cantt., filed the report stating the value of the subject property i.e D1C- 63B, First P.C. No. 08/2019 Page 4 of 12 Floor, Janak Puri, New Delhi - 110058 as ₹23,42,640/- (Rupees Twenty three lakhs forty two thousand and six hundred forty only).
11. On careful perusal and examination of the case record it is observed that the jurisdiction of this Court has been invoked by the petitioner, as the testatrix at the time of her death not only resided but also had a fixed place of abode within the jurisdiction of this Court. It is observed that a few of the subject property are also situated within the territorial jurisdiction of this Court.
12. The citations in terms of Section 283(1)(c) of the Act, 1925 were published in newspapers i.e. 'The Statesman' an English daily and 'Veer Arjun' a Hindi daily on 12.12.2019, respectively. The notice was also displayed at the notice board of the Court.
13. The proposition of law is well settled that while deciding a petition under Section 276 or 278 of the Act, this Court is acting as a probate Court. 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 proceedings and construction of a will relating to the right, title and interest of any other person is beyond the domain of the probate Court - See Krishna Kumar Birla v. Rajendra Singh Lodha.2
14. What is germane for this Court to decide is whether the will in question is a genuine will and whether the testatrix Kailash Dhingra was of sound mind at the time of signing and attestation of the will. It is the duty of the propounder of the will to prove the will in question in accordance with law. Before this Court proceeds further holding 2 (2008) 4 SCC 300 P.C. No. 08/2019 Page 5 of 12 whether the will is a genuine or false, forged and fabricated will, an extremely important aspect cannot be lost sight that the attesting witness to the will namely, Kumar Khemani, proved the genuineness of the will and state that testatrix was in good in physical health and mental state of mind at the time of execution of the will Ex.PW1/6.
15. A Constitution Bench of the Hon'ble Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee 3 indicated the focal position in law as follows:
"The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testatrix as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testatrix, the condition of the testatrix's mind, the 3 AIR 1964 SC 529 - p.531, para 4 P.C. No. 08/2019 Page 6 of 12 dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testatrix's was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testatrix. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut of wholly or in a part near relations."
16. A will is executed to alter the ordinary mode of succession and by the nature of things the will is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that the natural heirs have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring.
17. The Apex Court in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar4 held that it is the duty of the propounder of 4 1995 Supp (2) SCC 664 P.C. No. 08/2019 Page 7 of 12 the will to remove all the suspected features, but there must be real and valid suspicious features and not fantasy of the doubting mind.
18. In Pushpavathi v. Chandraraja Kadamba5 the Hon'ble Supreme Court held that if the propounder succeeds in removing the suspicious circumstance, the Court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations.
19. In Rabindra Nath Mukherjee v. Panchanan Banerjee 6 the Hon'ble Supreme Court observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will.
20. The petitioners' witnesses have deposed in concurrence about the signing and execution of the will on 14.06.2018. It is observed that the attesting witness to the will Ex.PW1/6 is not a stranger.
21. This Court places reliance upon the judgment passed by our Hon'ble High Court of Delhi in Ajay Kumar v. The State & Ors. - FAO No. 39/2017 dated 05.07.20187 wherein His Lordship, Valmiki J.Mehta, J., allowed the appeal under Section 299 of the Act, which challenged the impugned judgment dated 28.10.2006 dismissing the probate petition. Hon'ble High Court allowed the appeal and set aside the impugned judgment and held that the appellant had been successful in proving due execution and attestation of the will.
5(1973) 3 SCC 291 6 (1995) 4 SCC 459 7 2014 SCC OnLine Del 2521 P.C. No. 08/2019 Page 8 of 12
22. In Ajay Kumar's case8 though the contesting respondents did not lead any evidence whatsoever but His Lordship' delineated the provisions with regard to requirement of a valid and enforceable will under Section 63(c) of the Act and procedure how the execution of the will is proved under the provisions of the Indian Succession Act, 1925 and Indian Evidence Act, 1872.
23. Hon'ble High Court relied upon the ratio of the Hon'ble Supreme Court's judgment in M.B. Ramesh (Dead) by LRs v.K.M. Veeraje Urs (Dead) by LRs and Ors.9 with respect to the validity and proving of will. A will has to be executed in the manner required by Section 63 of the Act. Section 68 of the Indian Evidence Act, 1872 requires that the will is to be proved by examining at least one attesting witness. Section 71 of the Indian Evidence Act, 1872 comes to the rescue of a party who had done his best but would otherwise be let down if other means of proving due execution by other evidence are not permitted.
24. The relevant provisions of the Indian Succession Act, 1925 and Indian Evidence Act, 1872 read as follows:
Section 63 of the Succession Act "63. Execution of unprivileged wills.-
Every testatrix, 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:
8ibid.9
(2013) 7 SCC 490 P.C. No. 08/2019 Page 9 of 12
(a)-(b) *****
(c) The will shall be attested by two or more witnesses, each of whom has seen the testatrix 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 testatrix, or has received from the testatrix a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testatrix, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Section 68 of the Evidence Act:
"68. Proof of execution of document required by law to be attested.- 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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."
Section 71 of the Evidence Act:
"71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
25. Hon'ble High Court in Ajay Kumar v. The State & Ors. - FAO P.C. No. 08/2019 Page 10 of 12 No. 39/2017 dated 05.07.201810 observed that technicalities must not come as an insurmountable obstruction to defeat a litigant and once an attesting witness is examined, and his statement if read holistically shows proof of the execution and attestation of the will then the will should be held to be proved.
26. Lastly, Sh. Piyush Jain, Ld. counsel for the petitioner during the course of arguments submitted that there is no legal impediment in allowing the petition, the petition is neither time barred nor hit by Article 137 of the Limitation Act, 1963 (hereinafter "Limitation Act"), as the petition has been preferred by the petitioner within three years from the necessity of seeking probate of the will dated 14.06.2018 arose subsequent to the death of the testatrix on 28.07.2018.
27. This Court observes that no executors of the will dated 14.06.2018 were appointed by the testatrix.
28. Before this Court, the petitioner has proved the will dated 14.06.2018 of the testatrix Kailash Dhingra as Ex.PW1/6, as per the testimony of the attesting witness namely, Kumar Khemani (PW2).
29. Nothing material has been elicited with regard to the execution, attesting of the will and as well as of the mental soundness of the testatrix to execute the will. This Court holds that there is no contention to the petition, as per Section 286 of the Indian Succession Act, 1925.
30. This Court observes that the petitioner has not filed any objections to the valuation of the property in question. Thus, the valuation of the immovable property as per the concerned Collector's 10 2014 SCC OnLine Del 2521 P.C. No. 08/2019 Page 11 of 12 report is taken as correct and true value of the immovable properties - See Section 19-H of the Court Fees Act, 1870.
31. The Court's role in matters concerning wills is limited to examining whether the instrument propounded as the last will of the testatrix is or is not that by the testatrix and whether the same is a product of free and sound disposing mind.
32. In view of the above factual and legal position, I hold that the petitioner has proved that Kailash Dhingra duly executed the will dated 14.06.2018 in favour of the petitioner.
33. Let the letter of administration of a will dated 14.06.2018 of the estate of Kailash Dhingra (testatrix) comprising of immovable properties along with the copy of the will dated 14.06.2018 be granted to the petitioner with the seal of this Court in the form set forth in Schedule VI of the Act and also, subject to completion of requisite formalities, such as:
(a) furnishing ad-valorem Court fees on the total value of the above properties, and
(b) exhibit inventory and account within the prescribed period, as per Section 317 of the Indian Succession Act, 1925.
34. File be consigned to record room only after completion of all necessary compliance and due formalities.
Digitally signed byHARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2020.02.22 16:30:32 +0530 Pronounced in the open Court (HARGURVARINDER S. JAGGI) on February 22, 2020 Addl. District Judge-02 South West Dwarka Courts Complex, Delhi P.C. No. 08/2019 Page 12 of 12