Delhi District Court
Ms. Krishna Narula vs State on 6 May, 2019
IN THE COURT OF MS. SAVITRI : ADDL. DISTT. JUDGE-02,
WEST DISTRICT : TIS HAZARI COURTS: DELHI.
PC-61129/16
Ms. Krishna Narula,
D/o Late Dr. N.C. Narula,
R/o A2/211, First Floor, Janakpuri, New Delhi.
........Plaintiff
Versus
1. State
2. Mr. Rajan Sachdeva,
S/o Late Mr. R.C. Sachdeva,
R/o A2/211, First Floor, Janakpuri, New Delhi.
3. Ms. Ritu,
W/o Mr. Sunil Hoon,
R/o B-72, Kailash Apartments, Plot No-1,
Dwarka, New Delhi.
4. Mrs. Rajeshwari Sachdeva,
W/o Late Mr. Raman Sachdeva,
R/o A-2/211, Second Floor, Janakpuri, New Delhi.
5. Mr. Tanmay Sachdeva,
S/o Late Mr. Raman Sachdeva,
R/o A2/211, First Floor, Janakpuri, New Delhi.
6. Ms. Nionika Sachdeva,
D/o Late Raman Sachdeva,
R/o A2/211, First Floor, Janakpuri, New Delhi.
.....Defendant
Date of institution of the case : 13.09.2013
Date of reserving the judgment : 01.05.2019
Date of pronouncement of Judgment : 06.05.2019
JUDGMENT
PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 1 of 29
1. The present petition has been filed by petitioner Ms. Krishna Narula, an unmarried woman, for grant of letters of administration/probate in respect of estate left behind by her deceased elder sister Smt. Rani Sachdeva, who expired on 28.03.2011. As per the registered will dated 20.09.2010 deceased testatrix left behind following properties :-
1. MIG Flat No. 60, Pocket-B2, Sector-18, Rohini, Delhi; and
2. Property No. A2/A11, Janak Puri, Delhi, which she owned alongwith the petitioner.
2. The Deceased, who was a widow, was survived by following legal heirs of class-I :-
1. Sh. Raman Sachdeva - son (died on 15.10.2012);
2. Mrs. Ritu/Respondent no-3, married daughter; and
3. Sh. Rajan Sachdeva/Respondent no-2 - son;
3. Since, Sh. Raman Sachdeva had died prior to filing of the present petition, his widow Smt. Rajeshwari Sachdeva and her two children have been impleaded as respondents no. 4 to 6.
Out of the properties, mentioned above, as per the will, the deceased bequeathed MIG Flat to respondent no-2 Sh. Rajan and her half share in the Janak Puri property to the petitioner. In the event, Sh. Rajan Sachdeva intended to sell or rent out the MIG Flat, he was to keep 50% of the proceeds with himself, 25% has to be given to Utkarsh Hoon, son of Mrs. Ritu Hoon and remaining 25% has to be given to Tanmay Sachdeva/ respondent no-5 S/o Late Raman Sachdeva.
PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 2 of 294. It is mentioned in clause-6 of the will that she disinherited Sh. Raman Sachdeva and his wife Smt. Rajeshwari/respondent no-4 as they had been abusive to her during her lifetime and never looked after her even during serious illness.
5. After the notice of the petition was issued, the respondents entered appearance. Respondent no-2 Sh. Rajan and Respondent no-3 Ms. Ritu had no objection to the petition, based on will and filed their NOC before the court, taken on record vide order dated 11.03.2014.
6. Respondents Smt. Rajeshwari Sachdeva and her two children filed common objections taking a preliminary objection that the petition was not filed as per the procedure in law and that the purported will was a forged, fabricated and manipulated document and the signature of deceased were forged upon the same. It was never got prepared, signed or executed by the deceased. She had never visited the office of Sub-Registrar nor had presented the alleged will for registration. In fact, she was not able to move and visit the Sub-Registrar office at the relevant point of time. Further, since it was never signed or executed by the deceased and so there was no occasion for the alleged witnesses to attest the same. Further, that the deceased was not authorized to execute will of half share of Janak Puri property as it was purchased by her husband out of his own funds, for benefit of entire family. They also objected to the conveyance deed in the name of deceased with respect to the MIG Flat, Rohini, Delhi. It is further mentioned in the objections that due to her long and serious illness, failing physical health and mental condition, deceased could not differentiate between right and wrong and decide about disposal PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 3 of 29 of property. It at all, assuming for the sake of arguments that will was signed and executed by the deceased, it was not out of her free will and volition but under force, fraud, undue influence and coercion. There was no justification for the deceased for not giving share to late Raman Sachdeva as she shared a very cordial relationship with late Raman Sachdeva, Smt. Rajeshwari Sachdeva and their two children and the purported will was brainchild of petitioner and respondent Sh. Rajan Sachdeva, the two major beneficiaries of the will, who had colluded to deprive late Raman Sachdeva and his family members of their due share. In fact, late Raman Sachdeva was driven to commit suicide because of these two persons. The alleged attesting witnesses were their people acting for and on their behalf and under their instructions. The wrong intentions are apparent from the fact that the petition was not filed immediately after death of deceased rather they waited for death of late Raman Sachdeva, who died after almost two and half years of the death of deceased.
7. Further, it is mentioned in the objections that there was no justification for the deceased to exclude respondent Mrs. Ritu and her grand daughter Ms. Nionika/respondent no-6. Therefore, it is clear that she had died intestate and had executed no will.
8. Petitioner filed reply to the objections, wherein, she denied the contentions of objectors and reiterated the averments made in the petition, taking the stand that husband of deceased had not contributed anything towards Janak Puri property, which was purchased by the petitioner herself entirely from her own funds. Further, the petitioner and the deceased had always lived PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 4 of 29 together and the sisters had strong bonding between them while respondent Sh. Rajan Sachdeva had looked after his mother till her end and used to take her to hospital regularly for dialysis as she suffered from kidney failure; respondent Ms. Rajeshwari Devi never bothered about her nor even gave any emotional support to the deceased rather her attitude was of abusive, hatred and indecent towards the deceased. It is further mentioned in the reply to the objections that the Rohini MIG flat was purchased by husband of deceased but later on all the respondents had relinquished their share in favour of deceased. It is also mentioned that respondent Smt. Rajeshwari Devi had also objected to the grant of properties of her late father, in favour of her brother.
9. After completion of pleadings, following issues were framed by my Ld. Predecessor Judge vide order dated 04.11.2015 :-
ISSUES
1) Whether the deceased Mrs. Rani Schdeva executed a valid and enforceable Will dated 20.09.2010 as claimed by the petitioner? OPP
2) Whether the petitioner is entitled for Probate/Letter 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. 4 to 6 in the objections. OPR
4) Relief PETITIONER'S EVIDENCE PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 5 of 29
10. In order to prove its case the petitioner has examined herself as PW-1 on affidavit Ex PW-1/A, which is on the lines of her petition. She placed on record the following documents :-
1. Death Certificate of deceased as Ex PW-1/1;
2. Ownership documents relating to property no. A2/211, Janak Puri, New Delhi in joint names of witness and deceased as Ex PW-1/2 and Ex PW-1/2A;
3. Original will dated 20.09.2010 as Ex PW-1/3;
4. Death certificate of husband of deceased namely, Sh.
R.C. Sachdeva as ex PW-1/4;
5. SBI, Sadar Bazar Branch account passbook of the witness herself as PW-1/5;
6. PNB, Pahar Ganj branch, account passbook of the witness herself as PW-1/6;
7. The documents regarding mutation of Rohini Flat in favour of deceased as Ex PW-1/7;
8. Conveyance deed of Rohini Flat in favour of deceased as Ex PW-1/8;
9. Aadhar card and passport of the witness as Ex PW-1/9 (Colly);
11. During her cross-examination by Ld. Counsel for objectors no. 4 to 6, she stated that deceased was 10th pass. She suffered from kidney failure and was under dialysis and later on died due to heart failure but she did not suffer from any other medical problem. She denied the suggestion that deceased was seriously ill on 20.09.2010 and even prior to that day and she was unable to move and go outside her house. She further deposed that Sh. Rajan Sachdeva used to accompany the PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 6 of 29 deceased for dialysis and denied suggestions to the contrary.
12. She denied the suggestion that Sh. Rajan Sachdeva was not doing any work in the year 2011. She further deposed that deceased had not executed any will prior to or after the will in question. She denied the suggestion that deceased had not left behind any will or the will in question. In response to the question as to when she got the original will of the deceased, the witness stated that it was given to her by the deceased herself. She deposed that she did not know any Ms. Asha, Advocate nor any Vivek Kumar Chopra or any M. Shahid. It is important to note that perusal of the will reflects that it was drafted by Ms. Asha, Advocate and Sh. Vivek Kumar Chopra and M. Shahid were the two attesting witnesses.
13. The witness denied the suggestion that the will in question was a forged and fabricated document and was never signed by the deceased of her own free will and the witness herself had got it signed from the deceased by putting undue pressure upon her. She also denied the suggestion that the purported signatures on the will did not belong to deceased but had been put by the witness herself or by someone at her instructions.
14. The witness admitted that during her lifetime, the deceased testatrix did not file civil suit for vacation of property no. A2/211, Janak Puri, Delhi, nor made any police complaint against objectors no. 4 to 6, wherein, they had been living since long but denied the suggestion that this was not done because deceased had cordial relations with them and also with her elder son Sh. Raman Sachdeva (since expired). The witness admitted that the deceased had cordial relations with her daughter Ms. Ritu. The witness denied any knowledge about bank accounts/FDRs/ PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 7 of 29 bank locker/mutual fund etc. owned by the deceased but admitted that the family pension, which she received, was credited in her bank account but denied knowledge about the particulars of bank account.
15. PW-2 is the official witness from office of Sub-Registrar-II, Basai Darapur to prove the registered will as Ex PW-1/3. During his cross-examination, the witness admitted that the record brought by him did not contain the signatures of the Sub-Registrar at the place of presentation at the place mentioned on back of page no-3 of will. No other relevant question was asked.
16. The petitioner has examined attesting witness Sh. Vivek Kumar Chopra as PW-3 vide affidavit of evidence Ex PW-3/A. It is very interesting to note that this witness was not a summoned witness and the petitioner had denied having even known him ever, during her cross-examination. In his evidence affidavit, it is stated that he was known to the family of deceased since 1997, which is even more interesting to note, in light of the fact that as per the petitioner, she had always lived together with the deceased as her family member being her younger sister and did not know the witness despite this fact but later on produced him before Court despite he being a stranger to her.
17. It is further stated in the evidence affidavit that the witness had gone to Sub-Registrar office of 20.09.2010 on asking of deceased and had attested the signature of deceased, after the deceased had signed the will in his presence. It is further stated that he had furnished his election identity card bearing address F-52, Mohan Garden, Uttam Nagar, New Delhi, which is Ex PW-3/1, as proof of his identity and address at the Registrar office. Further, that at the time of filing evidence affidavit dated PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 8 of 29 20.01.2017, he was residing at another address i.e. N-23, Gurudwara Road, Mohan Garden, Delhi and exhibited the other voter ID as Ex PW-3/2.
18. It is all more interesting to note that at the time of tendering his evidence affidavit, the witness did not remember name of the deceased but identified her signature at the will when shown to him. Also, he did not remember the name of other attesting witness but identified his signatures also on the will.
19. Thereafter, he was cross-examined by Ld. Counsel for objectors. The witness admitted that though he possessed the voter card of his new address as it was issued to him on 18.10.2008, yet he furnished the voter ID of his old address before the Registrar and also mentioned the old address despite having shifted to the new address. Also, that he had not surrendered the old election ID, consequent upon issuance of new ID. He further deposed that he did not know any members of family of deceased except the deceased herself, though in his evidence affidavit he stated that he was known to the family of the deceased since 1997 i.e. about 13 years prior to her death.
20. In response to another question, he deposed that since Sh.
Rajan Sachdeva used to visit his shop alongwith deceased, he had known him. He also deposed that he appeared in the court for evidence on the asking of respondent Sh. Rajan Sachdeva but denied the suggestion that he had received monetary profit by deposing before the court at the instance of petitioner and Sh. Rajan Sachdeva.
21. He could not tell the exact date of drafting of the will but denied the suggestion that it was not typed in his presence. He volunteered to say that at the time of typing of will the deceased PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 9 of 29 was accompanied by respondent Sh. Rajan Sachdeva and the petitioner, her sister. Interestingly, earlier he had deposed that he did not know any member in the family of deceased. He further deposed that the will was got typed by the deceased but denied knowledge if the deceased could not dictate English language to the typist and denied the suggestion that she could not do so as she was not conversant with English language/legal language.
22. He denied the suggestion that the will was got typed by Sh.
Rajan Sachdeva and petitioner and deceased put her signatures without reading and understanding the contents of the same. He further deposed that he neither knew Mr. M. Shahid (second attesting witness) nor Ms. Asha, Advocate (who drafted the will) and stated that he never met them during his lifetime.
23. He denied the suggestion that in September 2010, the deceased was seriously ill and could neither stand nor walk on her own due to her old age and illness, being on dialysis. Surprisingly, the witness denied that deceased suffered from serious illness, whereas the fact regarding her undergoing dialysis twice a week, finds mention in the will itself. He deposed that he did not remember, if deceased used to wear spectacles or that her eyesight was weak in September 2010. He volunteered to state that he did not remember if she was wearing spectacles on the day of execution of will or not. The witness denied knowledge about personal matters of deceased such as employment or her age.
24. He deposed that he had reached the District Centre at about 10.30 AM and got free at about 1.00 PM (on 20.09.2010). He denied the suggestion that will was typed on different days and PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 10 of 29 not on one day that is why each page was having different font and spacing. He also denied any knowledge about relationship of deceased with her family members. He denied the suggestion that he had signed blank paper, later converted into a will that's why he had no knowledge of the contents of the will. He also denied the suggestion that he and the deceased were not present at the time of registration of the will or that it was dictated, drafted and manipulated by petitioner and Sh. Rajan Sachdeva in collusion with each other and got registered in absence of deceased. He denied that he had not signed the will at the instance of deceased or that the deceased had not signed the will in his presence.
25. During the course of cross-examination, the witness also deposed that he had known the deceased as she was his customer but he had not attested the will of any other customer of his, except the deceased. He also denied the suggestion that the deceased had never told him 2-3 days prior to the will that he had to sign her will as its attesting witness.
RESPONDENTS' EVIDENCE
26. Objector Smt. Rajeshwari Sachdeva has examined herself as the only RW. She has led her evidence by way of affidavit, Ex RW-1/A, which is on the lines of her objections. During her cross-examination, she admitted that the deceased used to sign in English language. She deposed that after her marriage in the year 1990, she lived in joint family with in-laws for about four years and thereafter shifted to Faridabad with her husband. She volunteered to say that there used to be constant quarrels in the PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 11 of 29 family because of Sh. Rajan, Ms. Ritu and petitioner Ms. Krishna. Further, that the petitioner was single but she has always resided with the deceased. She also deposed that Sh. Rajan Sachdeva and his wife used to accompany the deceased for dialysis. She denied the suggestion that she had never accompanied the deceased for dialysis, whenever, her husband late Sh. Raman Sachdeva had taken the deceased for dialysis. She also deposed that since six months prior to her death, the deceased was not in proper state of mind; she could not move independently nor take proper decisions on her own. She denied the suggestion that the deceased used to cook food for everyone in the house till her death. She stated that deceased was admitted to the hospital 3-4 days prior to her death and admitted that she died of lungs failure. She denied the suggestion that the petitioner purchased the Janak Puri house, where the parties were residing, of her own funds. She admitted that deceased was sharing kitchen with Sh. Rajan Sachdeva. She also admitted that Sh. Rajan and his wife used to take care of deceased till her death. She denied the suggestion that she never used to even meet/visit the deceased, although living on second floor of same property. She denied the suggestion that there had been quarrel between her (on one side) and deceased and petitioner (on the other side) in the year 2000 or that after that alleged fight, she never visited the deceased. She denied the suggestion that deceased had executed the will in sound dispose of mind or that Sh. Rajan Sachdeva was not involved in drafting and preparation of the said will. She denied the suggestion that no other person had any role in execution of will by the deceased or that nobody forcibly obtained her signatures PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 12 of 29 on the will.
27. Before proceeding to decide the present probate petition let me discuss in nutshell, the relevant legal provisions and judicial pronouncements.
28. 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, 1925 governs the capability of a person to make a Will. It reads thus:-
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation1.----A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it. Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle pellucid by adding that even a PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 13 of 29 person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason ( such an intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
29. 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 PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 14 of 29 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 attestation shall be necessary".
30. The plain words used in above quoted clause make it abundantly clear that the executant of a Will need not put his signatures and that affixing his mark is sufficient mode of authentication. As shall also be noted with reference to rule of evidence that while the law requires attestation by minimum two witnesses, it is not mandatory that both must have been present at the time when the testator executed the document, the presence of the testator being more important when the witnesses attest and further that, for proof of such execution and attestation, the testimony of only one of such witnesses is enough, that also only if such witness is alive and available.
31. The provisions contained in Section 67 and 68 of the Indian Evidence Act, 1872, also being germane to the discussion here, may be quoted:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.---If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
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 PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 15 of 29 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 provision of the Indian Registration Act, 1908 ( 16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
Apex court in H. Venkatachala Iyengar Vs B.N. Thimmajamma & Others, 1959 AIR 443 decided on 13 th November 1958 in which the Apex court laid down the following prepositions on the nature and standard of evidence required to prove a Will:-
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested , it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 16 of 29 executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them.
The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 17 of 29 has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion, etc, in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounded the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. "
In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Supreme Court had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to the earlier decision of H. Venkatachala Iyengar ( supra), the court held:-
"4.... 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 S.63 of the Indian Succession 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 signatures of the testator 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 genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 18 of 29 being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial 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 off wholly or in part near relations..."
( emphasis supplied)
32. The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that active participation of the propounder or beneficiary in the execution of the Will or exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra):-
"16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 19 of 29 without anything more, cannot be held to be a suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstances, 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. ( See Pushpavathi v. Chandraraja Kadamba [(1993) 3 SCC 291]. In Rabindra Nath Mukerjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was 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. Of course, it may be that in some cases they are fully debarred and in some cases partly."
(emphasis supplied)
33. Following the above rulings, the Supreme Court in Mahesh Kumar (dead) by LRs Vs. Vinod Kumar & Ors., (2012) 4 SCC 387, held, in the facts and circumstances of the said case that the evidence unmistakably showing that the objectors had separated from the family, taking their respective shares, not bothering to look after the parents in their old age, there was "nothing unatural or unusual" in the decision of the testator ( the father) to give his share in the joint family property to the son who, along with his wife and children, had taken care of the parents, adding that :-
"Any person of ordinary prudence would have adopted the same course and would not PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 20 of 29 have given anything to the ungrateful children from his/her share in the property."
34. In Hari Singh & Anr Vs. The State & Anr. 2010 ( 120) DRJ 716, a division bench of this Court, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus:-
"31 Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have mae it. ... There is nothing in law that prescribes that the testatmentary document has to be made and executed on the same day. Law does not mandate that each of the witnesses must be aware of the contents of the Will and the nature of the bequests. The rigours of attestation endeavour to eradicate manipulation and fabrication of such a testament by mandating that the testator as well as the witnesses should be simultaneously present at the time of its execution; nothing more and nothing less. Though there is no categorical evidence coming forth on the record, we do not find this fact to be legally anomalous or suspicious as to impeach the entire case of the appellant/petitioner."
(emphasis supplied)
35. Naveen Bhatia through LRs, Vs. Raj Kumari Bhatia & Ors.
decided by late Hon'ble Justice Valmiki J. Mehta of our own High Court and reported as 2017 (165) DRJ 511, holding as follows :-
"A trial court commits legal error by going into issues of title of the properties because a Probate Court only decides the validity or invalidity of execution of the will. Whether or not the testator did or did not have title to the properties which were subject of bequests under the will or that actually someone else PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 21 of 29 had title or that the testator had title only of some of the properties and not all of the properties or that testator had only part interest and not full interest in the bequeathed properties etc. etc. are all issues which have to be decided by a civil court in a civil suit between the parties whenever and where ever disputes will arise with respect to title of a particular property."
CASE LAWS CITED BY PETITIONER
36. Counsel for petitioner relied upon following judgments :-
1. Pulak Mukherjee Vs. Santosh Mukherjee & Ors.
MANU/WB/0284/2015, reiterating the already established law that there is no need for examining more than one attesting witness for proving a will;
2. K.M. Varghese & Ors. Vs. K.M. Oommen & Ors.
MANU/KE/0020/1994, holding that a person, who prepares/drafts a will, may be an attesting witness in the circumstances. Further, the registration of document is a prima facie evidence of its execution. It further held that entire circumstances and evidence have to be considered in order to decide upon execution of a will and it cannot be over turned merely on defective memory of a witness;
3. Vikash Singh & Ors. Vs. Devesh Pratap Singh MANU/BH/0176/2001, holding that execution of will during mere physical illness which does not affect the power of understanding/ cognitive faculties of the testator, is not a suspicious circumstance;
4. Prem Bhatnagar through LRs Vs. Ravi Mohan Bhatnagar & Ors. 192 (2012) DLT 228 DB, holding that a PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 22 of 29 disproportionate bequeath is not a suspicious circumstance by itself and registration raises a presumption of genuineness of a will, though rebuttable.
CASE LAWS CITED BY OBJECTORS/RESPONDENTS The objectors relied upon following judgments :-
1. Shyam Sunder & Anr. Vs. Kanti Prasad & Anr. 1 (2018) Civil Law Times 267 (Allahbad) holding that mere fulfillment of statutory requirement of proof of will does not result in automatically ruling out suspicious circumstances;
2. Bharpur Singh & Ors. Vs. Shamsher Singh AIR 2009 (SC) 1766, holding that propounder of a will must offer reasonable explanation to remove suspicious circumstances. It also enumerates some of the suspicious circumstances. Further, it held that the registration of will, by itself would not mean that statutory requirements of proving the will need not be complied with;
3. Yumnam Ongbi Tampha Ibema Devi Vs. Yumnm Joykumar Singh & Ors. (2009) 4 SCC 780, discusses statutory requirements for proving a will;
4. Tikkan Lal Batta through LRs & Ors. Vs. Ashok Kumar & Ors., holding where an attesting witness did not state that the other attesting witness signed in the presence of testator and there was no statement regarding who scribed the will and who had read over the same, disclose no sufficient compliance of Section 63 of Indian Succession Act. Further, it was held that if PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 23 of 29 one attesting witness admittedly did not know the other attesting witness, it is a suspicious circumstance;
5. Jaswant Kaur Vs. Amrit Kaur (1977) 1 SCC 369; and
6. Mohan Singh & Ors. Vs. Ishar Singh (through LRs) & Ors. AIR 2005 Punjab & Haryana 79 reiterating the settled legal position about the onus to dispel suspicious circumstances being on propounder of will;
7. Bhagat Ram & Anr. Vs. Suresh & Ors. AIR (2004) SC 436, holding that registration of will/codicil does not dispense with need of proving execution and attestation of the same, as per Evidence Act and the endorsements made by registrar are relevant only for the purpose of registration;
8. Janki Narain Bhoir Vs. Narayan Namdev Kadam VII (2002) SLT 361, holding when evidence of the only examined attesting witness did not prove attestation of will by the other attesting witness and the other attesting witness was not examined despite being available, the will could not be held to be proved as required u/s 68 of Evidence Act;
9. Bhagwan Kaur Vs. Kartar Kaur (1994) 5 SCC 135 reiterating the settled legal position that suspicious circumstances, if not reasonably explained, vitiate a will and mere registration of will is of no consequence.
10. Krishna Murari Mangal Vs. Prakash Narain & Ors.
AIR (2003) NOC 37 (MP), holding that will is not proved if the evidence of an attesting witness does not show that both attesting witnesses had signed the will after testator signed it.
PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 24 of 29ISSUEWISE FINDINGS
37. I have gone the record of case file and have heard the arguments advanced by Ld. Counsel for parties and considered the case laws cited above. My issue-wise findings are as follows:-
ISSUES NO-1 & 3
1) Whether the deceased Mrs. Rani Sachdeva executed a valid and enforceable will dated 20.09.2010 as claimed by the petitioner? OPP AND
3) Whether the petition of petitioner is liable to be dismissed for the objections raised by respondent/objector no-4 to 6? OPR
38. Both these issues are connected with each other. It is correct that the will in question was registered but the registration itself is not a proof of genuineness and validity of the will. In the present case, several suspicious circumstances have been pointed out by the objector, some of which are as follows :-
1. Alleged attesting witness denied having ever met or known the other attesting witness Mr. M. Shahid as well as the Ms. Asha, Advocate. Perusal of the will reflects that it was drafted by one Ms. Asha, Advocate and signature of the testatrix were attested by one Mr. M. Shahid in addition to PW-3 Sh. Vivek Kumar Chopra. It is not possible that the witness would not have known any of them, had he been actually present PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 25 of 29 at the time of preparation and execution of this will.
2. The attesting witness neither remembered the name of the deceased nor her age nor the fact as to whether she wore spectacles or not, nor the fact that she suffered from such serious health issues that she remained on dialysis twice a week. If he had actually known her since the year 1997 i.e. 13 years prior to the will, it is next to impossible that he would not have knowledge about the above facts. On one hand he deposed that he did not know anyone else in her family, on the other hand he stated that she was accompanied by her son and sister when the will was prepared.
3. Even, the petitioner denied having known or ever met Ms. Asha, Advocate and Mr. M. Shahid as well as PW- 3 Sh. Vivek Kumar Chopra, during her cross-
examination. But, the same PW-3 was not required to be summoned before the court, rather he appeared of his own, on mere asking of respondent Sh. Rajan Sachdeva. He knew the petitioner as having seen her accompanying her deceased sister to the Registrar office. But, had he actually known her, she would have also known him for sure. Under these circumstances, the presence of PW-3 Sh. Vivek Kumar Chopra at the time of preparation and execution of will of the deceased and witnessing the same becomes very doubtful. It appears under these circumstances that this witness was known to only Sh. Rajan Sachdeva, who produced him when the need for recording his PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 26 of 29 evidence arose.
4. This witness deliberately did not furnish his correct address and correct voter I.D. before the Registrar, as a proof of his residence. Also, he has not assigned any special reason as to why out of hundreds of customers of him, he had chosen to be a witness to the will of only the deceased testatrix.
5. Perusal of the will reflects that the date of the same had been written in hand, which is otherwise a computer typed document. Had the document been actually prepared on one and same day, there was no requirement to fill the date in hand. This casts a serious doubt on the story of witness that the will was drafted on 20.09.2010 itself, the day on which it was registered.
6. At the end of the will, the names of the witnesses have not been typed, rather written in hand. The signature of PW-3 is not at the place where it should have been. Rather, it is above the word 'WITNESSES'. Had the signature been taken after preparation of the document, he should have signed at serial no. 1. Also, witness Mr. M. Shahid should have signed at serial no-2. But, this place is occupied by the handwritten address of witness no-1. This could never be the position, had the witness Mr. M. Shahid also signed the document after it was typed. These facts clearly show that the signature of witnesses were taken on blank papers and the matter was typed later. In these circumstances, there is no value of the signature of PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 27 of 29 PW-3 as well as his evidence and in my view, the will is a forged document and the witness PW-3 has lied on oath.
7. Both the beneficiaries of the will had played a very active role in preparation and registration thereof. This ground coupled with the circumstances, mentioned above, is a very serious suspicious circumstance.
8. It is mentioned in the will itself that the deceased suffered from serious health issues and to undergo dialysis twice a week and her health was deteriorating. Under these circumstances, it is doubtful as to whether she would have been in a position to give instructions regarding the terms and conditions of the will and visiting Registrar's office for registration of the same.
9. Admittedly, the petitioner and respondent Sh. Rajan and his family were taking care of the deceased till her death and she was living in joint family with them while the objectors were having a separate kitchen and were living on a separate floor. In these circumstances, both the beneficiaries were very much in a position to influence her decision/will about the disposal of her property.
39. The burden to explain the above mentioned circumstances rested upon the shoulder of petitioner, which she miserably failed to discharge as during the entire pleadings and evidence no explanation for the same is reflected. In these circumstances, it is not proved that the deceased had executed a valid and enforceable Will dated 20.09.2010, as claimed by the petitioner. In the light of the law, discussed in preceding PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 28 of 29 paras, mere registration of the will does not entitle the petitioner to grant of letters of administration/ probate in her favour. Accordingly, the issues no. 1 and 2 are decided in favour of objectors and against the petitioner.
Issues No. 2 & 42) Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP AND
4) Relief
40. The natural corollary of the above discussion is that the petitioner is not entitled for probate/Letter of Administration on the basis of aforesaid will. Both these issues are decided in favour of objectors and against the petitioner. The petition fails and is dismissed.
41. File be consigned to record room.
Digitally signed by SAVITRI SAVITRI CHAUDHARY
Announced in the open court CHAUDHARY ATTRI
Date: 2019.05.02
on 6th day of May, 2019 ATTRI 07:32:22 +0530
(SAVITRI)
Addl. District Judge-02 (West)
Tis Hazari Courts: Delhi
Note :- The above judgment has been dictated directly on computer and shorthand dictation was not given to the stenographer.
PC No. 16129/16 Krishna Narula Vs. State & Ors. Page 29 of 29