Delhi District Court
Smt. Vidhya Devi vs . State & Others on 4 April, 2008
1
In the court of ASHWANI SARPAL, Additional District Judge,
Room No. 272, Tis Hazari Court, Delhi.
Smt. Vidhya Devi vs. State & others
(PC No. : 377/06/00)
(Petition u/s 276 of the Indian Succession Act
for grant of Probate of Will)
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JUDGMENT:-
The present petition u/s 276 of the Indian Succession Act for grant of Probate of the Will dated 13-5-1986 executed by late Mangu Ram Pahuja was filed in the court on 18-2-2000.
The notice of this petition was given to the State and the respondents and the general public was also informed through the citation in the newspaper. Respondents No. 2, 6 and 7 became ex-parte whereas the case was contested by respondent No. 3 to 5 and 8 only. No one appeared on behalf of the state or general public to say anything in this matter.
Averments made in the petition:-
Petitioner is a grand daughter of Mangu Ram Pahuja who had three sons namely Ram Chander Pahuja (expired), Trilok Chand Pahuja 2 (expired) and Krishan Kumar Pahuja. Eldest son Ram Chander Pahuja married twice and petitioner is his daughter from first marriage. The legal heirs of Mangu Ram Pahuja are mentioned in the following table:
Mangu Ram Pahuja ] ]
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] ] ]
] ] ]
Ram Chander Pahuja Trilok Chand Pahuja Krishan Kumar Pahuja.
](son) ](son) ](son)
] ] ](R-8)
] ------------------
] ] ]
] Inderjeet Poonam
] (R-6) (R-7)
]
]
]
]
]
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] ]
] ]
1st wife 2ndwife
] ]
] ]
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] ] ] ] ]
Vidhya Devi Megh Nath Vijay Sethi Joginder Anju
(petitioner) (R-2) (R-3) (R-4) (R-5)
According to the petitioner, Mangu Ram Pahuja had executed a Will dated 13- 5-1986 in her favour in respect of the property No. F-132, Mansarover Garden, Delhi which is his self acquired property. Mangu Ram Pahuja expired on 6-6- 1987. Petitioner further alleged that deceased Mangu Ram Pahuja used to 3 reside with her father Ram Chander Pahuja in the property in question and also resided with her in Faridabad in the year 1985-86. The Will was executed and registered at Faridabad. Petitioner also stated that due to serious sickness of her husband and son, she could not file the petition for probate in time.
Objections of Respondents no. 3 to 5 and 8:-
The first objection of time barred petition, delay and latches is taken by the respondents. It is also stated that the deceased Mangu Ram Pahuja had executed earlier a registered Will dated 3-4-1978 and in the present Will propounded by the petitioner, there is no reference of the earlier Will which point out that the deceased was not possessed of sound disposing mind and was not in his senses at the time of execution of Will dated 13-5-1986.
It is also stated that the deceased had not revoked the earlier Will specifically, was aged about 100 years at the time of execution of the Will, suffering from the various ailments and had no justifications to execute fresh Will which create doubt about the genuineness of the Will in question.
Respondents further disputed that the deceased resided with the petitioner at Faridabad in the year 1985-86 but stated that the Will may be executed during one of the visits of the deceased to the Faridabad. The execution of the Will in Faridabad during the short visit/stay also creates doubt especially when the Will in question is not signed by the deceased who had not only signed but also put his thumb impression in the earlier Will. Non disclosing of existence of Will dated 13-5-86 for period of 14 years to anyone is also described as one of the major cause of suspicion of genuineness of this Will.
Rejoinder and issues:-
The petitioner in her reply to the objections denied the averments 4 made in the objections and stated that Will dated 13-5-1986 is genuine and valid one. On the basis of the pleadings of the parties, my Ld. Predecessor framed following issues vide order dated 21-10-2003:
1) Whether the Will dated 13-5-1986 as propounded by the petitioner was executed by the deceased Sh. Mangu Ram Pahuja in his sound disposing mind and with free consent and same is his last Will and testament? OPP
2) Relief.
In order to prove her case, petitioner examined PW-1 Sukh Ram Jakkar, advocate who is one of the attesting witnesses of the Will, PW-2 Subhash Grover who drafted the Will and herself as PW-3. Respondents on the other hand examined total five witnesses. RW-1 Jag Narain, Record Clerk from the office of Sub Registrar, Kashmiri Gate brought the record of execution and registration of the Will dated 3-4-1978. Respondent no. 3 Vijay Sethi examined herself as RW-2. RW-3 R.S. Rawat, an official of Passport office produced the record regarding issuance of passport to the deceased to show his address and age. RW-4 Ghasi Ram from the Punjab National Bank produced the record pertaining to one joint account of the deceased and his son Ram Chander Pahuja. Respondent no. 8 also stepped into the witness box as RW-5.
I have heard the counsel for the parties and gone through the record, documents proved on record and case laws cited. My decision on above issues is as under:-
Issue No. 1:-5
The Will dated 13-5-1986 executed by Mangu Ram Pahuja relied upon by the petitioner is Mark-'A'. Respondents have relied upon the Will dated 3-4-1978 which is Ex. PW-3/R-1.
The law is well settled that the last Will of the deceased prevails. Even if in the subsequent or last Will, the specific words of 'revocation of previous Will' is not mentioned, then that would be immaterial because subsequent Will automatically revoke all the previous Wills. The Will becomes effective only after the death of the testator and during his life time, he can change his Will by any number of times. Law requires that last and final Will containing the wishes of the testator are to be honored. In the case Rajeev Kumar vs. State of UP 1979 (5) ALR 151, it is held that registration of the Will is optional and even subsequent unregistered Will can certainly revoke the earlier registered Will. Accordingly, if petitioner is able to prove that Will propounded by her dated 13-5-1986 Mark-'A' is genuine and valid, then that Will prevail and has to be enforced and previous Will Ex. PW3/R-1 dated 3-4- 1978 relied upon by the respondents shall deem to have been revoked.
Respondents have raised objections that the Will relied upon by the petitioner was executed in the year 1986 and the present petition was filed in the court in the year 2000 after a gap of 14 years so this petition is time barred. However this argument is without any force because the law of limitation is not applicable to the probate proceedings. Though delay and latches can be considered as one of the suspicious circumstances but simple delay alone is not sufficient to throw away the case of the petitioner as a whole. In this regard, reliance can be placed upon the case law Prem Sagar vs. State 2007 IV AD (Delhi) 332.
Supreme Court in case Sridevi vs. Jayaraja Shetty (2005) 2 Supreme Court Cases 784 describe the mode of proving of the Will. It is held that;6
"It is well settled proposition of law that mode of proving the Will does not 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 Indian Succession Act, 1925. The onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the Will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such manner. In case the person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same."
In the light of observations given above by the Supreme Court, we have to examine whether the Will in question Mark-'A' was validly and genuinely executed by the deceased or not ?
The documents have to be proved in accordance with the provisions of Indian Evidence Act and Will has to be proved by examining at least one attesting witness as per requirement of section 68 of Indian Evidence Act. Mere fact that this Will in question could not be formally exhibited by the court and was only marked is not a ground to presume that the same is not validly proved. Putting of any mark or exhibit number on a document is meant only to identify the same for the sake of convenience and it is not the law that if the 7 document is not given any exhibit number, then the same has to be treated as 'not proved'. The document which is legally proved even is not exhibited or even not given any identification at all, still can be read in evidence. Similarly document even if is exhibited but not legally proved can not be considered. Hence arguments of counsel for the respondents to reject the Will in question which is simply marked and not exhibited is liable to be rejected.
PW-1 is an attesting witness of the Will Mark-'A'. He identified the thumb impression of the deceased put on the Will in his presence and also stated that he also signed on the Will at the same time. This witness further stated that another attesting witness Peda Ram also signed in his presence on this Will as well as in presence of the executant. PW-1 further stated that the Will was registered in his presence in the office of the Sub Registrar where on the back of the Will, he and another attesting witness signed as well as executant put his thumb impression. PW-2 who had drafted this Will at the instructions of the executant Mangu Ram also can be said as another attesting witness because he also stated that executant had put his thumb impression and witnesses had also signed on it in his presence.
Mere fact, that the Will was not written or typed in presence of PW- 1 is not sufficient to reject his testimony or to doubt his status being the attesting witness as it is not the requirement of the law that Will must be written in the presence of attesting witnesses also. According to PW-1, another witness Peda Ram has already died who may be a tout and was procuring professional work for PW-1 but this ground is also not sufficient to treat the Will as not genuinely executed.
The Will Mark-'A' shows that the executant was 100 years of age at the time of execution. PW-1 in his cross examination specifically stated that the executant was mentally fit at the time of execution of the Will, though he was weak because of his old age. Mere old age and suffering from various ailments 8 itself is not sufficient to presume that the mental capacity and sound disposing mind has also been affected. Respondents have not placed on record any document to show that the deceased due to old age of 100 years had lost control over his senses and has become of unsound mind person. RW-2 admitted in her cross examination that no medical examination was got conducted of the deceased in the year 1986 which leads to the inference that deceased though was very old but was still keeping good health and sound mind. RW-5 even in his cross examination admitted that his father was maintaining good physical and mental health and was in a position to act and understand and consequences of his acts. PW-2 also stated that executant was physically fit when visited him. Otherwise also executant Mangu Ram Pahuja died after about a year of the execution of the Will which rule out possibility of manipulating the Will or putting undue influence on his mind. Thus the defence of respondents that deceased was not in sound disposing mind due to very old age itself is shattered by own witnesses of the respondents. Supreme Court in case Sridevi vs. Jayaraja Shetty (2005) 2 Supreme Court Cases 784 upheld the validity of the Will which was duly proved and there was nothing on record any fact of poor physical health and unsound mind state of testator. Court was of the view that mere age of 80 years of testator and death within 15 days of execution of Will itself is not sufficient to reject the Will. The same law can be applied here in the present case.
The Will was read over by PW-1 who was an advocate to the executant prior to putting of thumb impression by him. It was not compulsory for this witness to ask to the executant whether he had earlier also executed any Will or not? Similarly it was also not necessary for the executant to inform him about his previous Wills. When the Will in question was already typed prior to coming before PW-1 for the purpose of attestation, then there was no occasion available to this witness to ask this question. Hence in my opinion, 9 the Will is fully proved from the statement of PW-1 and 2.
Counsel for the respondent tried to show that Will in question is forged and fabricated because executant Mangu Ram Pahuja used to sign also whereas Will Mark-'A' was bearing only his thumb impression. It is also stated that in the previous Will Ex. PW3/R-1, executant had not only signed but also put his thumb impression. PW-2 had drafted the Will in question and entry in this respect was made by him in his register Ex. PW-2/1. Though this witness could not furnish any explanation why he had not taken the signatures of the deceased on his register and PW-1 also admitted that no one had asked the executant to put his signatures on the Will Mark-'A' whereas in the Faridabad as per practice the Will is also signed by the executant are not sufficient to reject the Will on ground of suspicions. It is not necessary that a person who is literate and used to sign must sign the Will instead of putting thumb impression. Executant due to old age of 100 years might have chosen to put his thumb impression instead of signing due to weakness of body or due to shivering of hands but as per law putting of thumb impression or any other mark also validate the Will, if due execution of it is proved. RW-4 witness from the bank examined by the respondents stated that the deceased used to sign as well as used to put his thumb impression in the bank record. From the version of RW-4, it is clear that the deceased was not always putting his signatures but he used to put his thumb impression also. The thumb impressions of the deceased were available in the records of the bank but no steps taken by the respondents to get the same compared with the thumb impression on the Will Mark-'A'. No Finger Print Expert has been examined by the respondents to show that the Will in question is not bearing the genuine thumb impression of the deceased. Accordingly non-signing of the Will by the executant does not amount to grave suspicion to treat the Will in question as invalid one.
10Though, it has come on record that the executant was residing in Delhi ordinarily but is it not compulsory to execute the Will at the place where one resides. Petitioner is a grand daughter of deceased who used to visit her at Faridabad. Respondents even admitted in their objections filed in court that he used to visit petitioner even the same were causal visits. This fact also point out that despite the age of about 100 years, deceased was in fit physical position and could move. Even if, executant during his casual or short term visit in Faridabad executed and got registered Will there, then that itself does not amount to any suspicious circumstances requiring explanations. No evidence has come on record that PW-3 at the time of execution or registration of the Will was with the executant or was accompanying him. Supreme Court in Pentakota Satyanarayana vs. Pentakota Seetharatnam (2005) 8 Supreme Court Cases 67 held that any and every circumstances is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, that itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. Mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. Here in the present case, nothing has come on record that petitioner actively participated in the execution of the Will so the possibility of putting undue influence is also ruled out.
Counsel for the respondents also argued that Will Mark-'A' is containing false fact that this is the first and last Will of the executant which fact is wrong because he had earlier also executed a Will Ex. PW3/R-1 and got registered on 3-4-1978 so the same should not be relied upon. Though this single fact is not correctly mentioned in this Will Mark-'A' but that itself is not sufficient to totally reject this Will because PW-1 and PW-2 have fully proved the Will and the last Will would prevail. A small minor false averment in the 11 Will is not sufficient to reject the same as a whole. This false fact might have come in the Will due to lapse of time and weak memory due to old age of the executant. Non remembering of certain minor and unimportant facts by PW-1 and 2 after 18 years of execution of Will and very small contradictions in their statements also can be condoned and would not affect their testimony at all.
The respondents have also taken stand that this Will was not disclosed for several years by the petitioner and delay of coming to court after 14 years is fatal, but they have also failed to establish that they had also disclosed about the Will of year 1978 in their favour. Respondents have also not taken any steps for getting the probate on the basis of the Will of 1978. If the delay and latches are on the part of the petitioner (which is otherwise explainable) then the same rule is also applicable upon the respondents also. Petitioner has stated that due to sickness of her husband and son, the petition could not be filed earlier can be treated as valid explanation to condone the delay and remove the latches. Accordingly, in my opinion, the delay has been explained by the petitioner and even otherwise also do not create any great suspicion when the law of limitation has no application to the Probate proceedings.
The respondents have failed to bring on record any material to show that the petitioner had strained relations with the deceased. RW-2 no where alleged in her statement about those strained relations. Even if in his affidavit RW-5 whispered that the petitioner was not having talking and good terms with the deceased and on this aspect no cross examination was done but this simple vague and general allegation of strained relationship without any specific instance is not sufficient to create any suspicion because in the Will itself the deceased had given reasons why he was favouring the petitioner and excluding other legal heirs. Absence of any enmity between the respondents and the deceased is also not sufficient to doubt the genuineness of the Will 12 because the executant can pick and choose even from his close legal heirs and when the reasons of giving the property in question to the petitioner is mentioned in the Will itself which is proved beyond any doubt then the exclusion of the respondents despite having good relations with the deceased are not sufficient to treat it a grave unexplainable suspicious circumstances. In similar circumstances, Supreme Court in case Ramabai Padmakar Patil vs. Rukminibai Vishnu (2003) 8 Supreme Court Cases 537 upheld the proved Will by which property was given to one of the legal heir due to certain justified reasons by excluding others and the same was not treated as suspicious circumstances. Such type of Will even may be unnatural in the sense that it cut off wholly or in part the near relations, if is beyond purview of suspicions, has to be given effect. In the cases cited by counsel for the respondents titled as Gurdial Kaur vs. Kartar Kaur AIR 1998 SC 2861 and Ram Piari vs. Bhagwant AIR 1990 SC 1742 there were no reasons why other close legal heirs of the same degree were excluded and why the estate was bequeathed to a particular legal heir so the Will in those cases were not relied upon but here in the present case, justification and explanation of exclusion of respondents is available and sound so the case laws cited by counsel for respondents can be distinguished from the present facts and circumstances of the case.
There were also change of circumstances due to which executant changed his earlier Will. He had given some properties to another son Trilok Chand and third son respondent no.8 had left the country. These grounds might have compelled the executant to change his mind about the manner of distribution of the properties and bequeathed the property in question to the petitioner.
Other case laws cited by the counsel for the respondents i.e. Smt. Raj Rani vs. State 1996 IV AD (Delhi) 27, Ashutosh vs. Umashasi AIR 1984 Calcutta 223, Surindra Pal vs. Dr. Saraswati Arora AIR 1974 Supreme 13 Court 1999, Susama Bala vs. Ananth Nath AIR 1976 Calcutta 377 and T. Venkat Sitaram vs. T. Kamakshiamma AIR 1978 Orissa 145 are distinguishable from the present facts and circumstances of the case because petitioner has been able to remove the suspicious circumstances which are minor in nature so there is no ground available to the court to decline the relief claimed.
Hence in the circumstances explained above, especially from the statements of PW-1 and PW-2, it can be said that the Will Mark-'A' was executed by the deceased Mangu Ram Pahuja after understanding its contents without any pressure, influence or coercion in presence of the witnesses and he put his thumb impression on it in presence of those witnesses who also signed in presence of the executant as well as in presence of each other. From the statements of PW-1 and PW-2 and from the admission of the witness RW-5 examined by the respondents, it is also proved that the deceased was in sound disposing mind and was competent to execute the Will Mark-'A'. The Will is thus proved to be the last and genuinely executed Will. Hence issue no.1 is decided in favour of the petitioner and against the respondents.
Issue no. 2:-
In view of the findings given above that Will Mark-'A' executed by Mangu Ram Pahuja dated 13-5-1986 is valid and genuine so this petition is allowed and Letters of Administration with copy of the Will Mark-'A' annexed is granted in favour of the petitioner in respect of the property no. F-132, Mansarover Garden, Delhi subject to furnishing of court fees according to the valuation of the property to be obtained later on from the Collector concerned on the date of the filing of the petition and administration bond with one separate surety bond. An inventory of the property of the deceased shall be exhibited in the court within six months from the date of issue of formal letter 14 of administration and a statement of account shall be filed within one year thereafter by the petitioner. It is further clarified that question of right, title and ownership of this property is not decided by this court.
File be consigned to the record Room.
(ASHWANI SARPAL)
Dated:- 4-4-2008 ADDITIONAL DISTRICT JUDGE
DELHI.