Delhi District Court
Sh. Satya Pal Sobti vs Sh. Achraj Nath on 23 March, 2013
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IN THE COURT OF SH. RAJESH KUMAR SINGH, ADDITIONAL
DISTRICT JUDGE-05/CENTRAL, TIS HAZARI COURTS, DELHI
Suit No. : 111/09
Unique ID No. 02401C5311922004
Sh. Satya Pal Sobti
S/o. Late Sh. Kundan Lal Sobti
R/o. 82-D, Sriganganagar,
Rajasthan.
.............PLAINTIFF
VERSUS
1. Sh. Achraj Nath
S/o. Late Sh. Kundan Lal Sobti
R/o. A-32, Vishal Enclave, New Delhi.
2. Sh. Krishan Kumar Sobti
S/o. Late Sh. Kundan Lal Sobti
3. Sh. Vinod Sobti
S/o. Late Sh. Kundan Lal Sobti
4. Sh. Yog Raj Sobti
S/o. Late Sh. Kundan Lal Sobti
5. Smt. Nirmla Sobti
W/o. Sh. Trilok Nath Sobti
6. Sh. Harish Sobti
S/o. Late Sh. Trilok Nath Sobti
7. Sh. Jitinder Sobti
S/o. Late Sh. Trilok Nath Sobti
All r/o. A-32, Vishal Enclave, New Delhi
8. Smt. Seema Uppal
Suit No.111/09 Page 1 of 21
Satya Pal Sobti VS Achraj Nath & Ors.
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W/o. Sh. Sunil Uppal
D/o. Sh. Trilok Nath Sobti
C-86, New Multan Nagar,
New Delhi-110056.
9. Smt. Satya Khullar (since deceased)
through her LRs
i) Sh. Jung Prakash Khullar (husband)
R/o. D-71, Ground Floor, Fateh Nagar,
New Delhi-110018.
ii) Sh. Ravi Kumar
R/o. D-71, Ground Floor, Fateh Nagar,
New Delhi-110018.
iii) Smt. Malti Khullar alias Geeta Sobti (daughter)
R/o. 7/261, Sunder Vihar, Near Pachim Vihar,
New Delhi-110087.
iv) Smt. Savita Bhasin (daughter)
R/o. A-53, Kumawat Colony,
Jhotwara, Jaipur-302012.
10. Smt. Usha Bhasin
W/o. Sh. Girdhar Bhasin
C/o. Mool Chand Shyam Lal
Roller Floor Mill Pvt. Ltd.
28/201, Rattan Pura, Agra.
11. Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA, New Delhi.
..................DEFENDANTS
Date of Institution: 30.01.2004
Judgment reserved on : 14.03.2013
Date of Judgment: 23.03.2013
JUDGMENT
1. The plaintiff filed the suit for partition and injunction. The plaintiff Suit No.111/09 Page 2 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-3-moved an application for amendment of the plaint which was allowed by order dated 27.08.04. The relief of declaration was added in the plaint and Delhi Development Authority was impleaded as Defendant no. 11 in the suit. Defendant no. 2 to 4 had filed a joint written statement and they filed amended written statement to the amended plaint. Defendant no. 1 and 5 to 11 had filed a joint written statement to the original plaint and they did not file written statement to the amended plaint. The defendant no. 9 expired during the pendency of the suit and her legal heirs were brought on record vide order dated 15.05.2010. Defendant no. 11 filed a separate written statement.
2. The case of the plaintiff is that he is son of Late Sh. Kundan Lal Sobti and Smt. Kailashwati Sobti. Defendant no. 1 to 4, 9 and 10 are his brothers and sisters. Defendant no. 5, 6, 7 and 8 are the wife and children respectively of Late Sh. Trilok Nath Sobti who was brother of the plaintiff. During her life time Smt. Kailashwati Sobti acquired immovable property at Shriganganagar, Rajasthan. She sold this property and acquired house no. 376, Vikas Puri, New Delhi which is the suit property. After getting the allotment of the suit property she raised construction which is now in possession of defendant no. 2, 3 and 4. The title deed of the property is also in possession of these defendants. On 19.05.87 Smt. Kailashwati Sobti left for her heavenly abode leaving behind the parties to the present suit as her class-I legal heirs. Prior to her death, Smt. Kailashwati Sobti was not keeping well for five-six years and she was suffering with various ailments. She was also suffering with loss of memory and she did not execute any Will while possessing a Suit No.111/09 Page 3 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-4-sound mind. The plaintiff asked the defendant no. 2, 3 and 4 who are in possession of the property to partition the property equally among all legal heirs but they did not partition the property. The plaintiff sent legal notice dated 15.12.03 to the defendants. Smt. Kailashwati Sobti was not in a fit state of mind at the time of execution of the Will dated 16.06.1981 and therefore, the Will is not a valid Will. Sh. Trilok Nath Sobti who was son of Smt. Kailashwati Sobti expired on 29.05.1981 at the age of 43 and due to this also she was not in a fit state of mind to execute the Will on 16.06.1981. The defendant no. 2 to 4 got the conveyance deed of the property executed in their favour from defendant no. 11 on 19.04.2002 on payment of Rs. 10,201/-. As the Will is not a valid Will, the conveyance deed is liable to be set aside. Plaintiff has valued the suit at Rs. 16 Lakhs for the relief of partition, at Rs.130/- for the relief of injunction and at Rs. 200/- for relief of declaration. He has claimed 1/8th share in the suit property. He has also prayed that the Will dated 16.06.1981 be declared invalid.
3. In the written statement defendant no. 2 to 4 have stated that the plaintiff has not approached the court with the clean hands. Immediately after the death of Smt. Kailashwati Sobti on 19.05.1987, the plaintiff was informed about the Will and the suit is barred by limitation. They have claimed that the Will dated 16.06.1981 was executed by Smt. Kailashwati Sobti in a fit state of mind. It is also stated that she got her son Sh. Yog Raj Sobti married on 29.06.1982 and this shows that she was in a fit state of mind at the time of executing the Will. The allegation in the plaint regarding the health and mental condition of Smt. Suit No.111/09 Page 4 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-5-Kailashwati Sobti have been denied. According to defendants the suit property is valued more than Rs. 60 Lakhs and therefore, the suit is not properly valued for the purpose of court fees and jurisdiction. The defendant no. 1 and 5 to 10 have supported the stand taken by defendant no. 2 to 4.
4. Issues were framed on 02.02.2005 and the same are as hereunder :
1. Whether the suit of the plaintiff is properly valued for the purpose of Court fee and jurisdiction? OPP.
2. Whether notice under section 53(B) of Delhi Development Act has been served upon DDA, if not, its effect ? OPP.
3. Whether the suit of the plaintiff is time barred? OPD.
4. Whether the suit of the plaintiff is maintainable in the present form? OPD.
5. Whether Smt. Kailash Wati was not in sound state of mind at the time of execution of the Will? OPP.
6. Whether the plaintiff is entitled for the relief of partition as claimed in para (a) and (b) of prayer clause? OPP.
7. Whether the plaintiff is entitled to relief of injunction as prayed for? OPP.
8. Whether the plaintiff is entitled for a decree for declaration as prayed in para (e) in the prayer clause of the plaint? OPP.
9. Relief.
5. Vide order dated 05.11.2011 the application of the plaintiff under order 14 rule 5 CPC was allowed and the issue no. 5 was re-framed as hereunder :
Whether Smt. Kailashwati had executed Will dated 16.06.1981 in favour of defendant no. 2, 3 and 4 and if yes, its effect? (Onus to prove the issue would be on both the parties.) After re-framing of the issue, no further evidence was led by the parties. I have heard the arguments of Sh. Anil Sharma, Ld. Counsel for the plaintiff, arguments of Sh. Deepak Khadaria, Ld. Counsel for defendant no. 2 Suit No.111/09 Page 5 of 21 Satya Pal Sobti VS Achraj Nath & Ors.-6-
to 4 and I have perused the written submissions filed by them. No arguments have been submitted by the defendant no. 1, 5 to 10 and by defendant no. 11.
6. The plaintiff has examined himself as PW1. The defendants have examined the defendant no. 2 as DW1, Sh. S.K. Sharma as DW2 and Sh.
D.C. Tuteja as DW3. One more witness Mr Indraj Singh LDC from office of Sub Registrar examined by them has also been numbered as DW-3. The issues are decided as hereunder :
7. Issue No. 1: The plaintiff has valued the suit at Rs. 16,00,000/- for the relief of partition and at Rs. 130/- for the relief of injunction. For the relief of declaration the suit has been valued at Rs. 200/-. In the WS the defendant no. 2, 3 and 4 submitted that the property is valued more than Rs. 60,00,000/- . According to the defendants the suit is under valued for the relief of partition. The parties have not led any evidence on this issue. It is not disputed that the defendants no. 2, 3 and 4 paid a sum of Rs. 10201/- to DDA for the conveyance deed. In the cross examination of PW-1 suggestion was given that the value of the property was more than Rs. 60,00,000/- but no evidence has been led by the defendants to support this suggestion. Though the plaintiff has also not led any evidence on the point of valuation, the valuation put by him is to be accepted as no contrary evidence is produced by the opposite party.
During the course of arguments, ld counsel for the defendants has also not pressed this issue. The issue is accordingly decided in favour of the plaintiff.
8. Issue No. 2: It is admitted fact that no notice U/s 53 (B) under the DDA Act was given to the defendant no. 11 (DDA). Ld counsel for the Suit No.111/09 Page 6 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-7-plaintiff has relied upon AIR 2004 DELHI 225 where it has been held by the Hon'ble High Court of Delhi in the matter of Yasodha Kumari Vs. Municipal Corporation of Delhi that once the authority has contested the suit on merit, then even at preliminary stage, it could not complaint of non-service of notice u/s 53 (B) nor could it be held fatal to justify the dismissal of the suit. In the present case defendant no. 11 was impleaded after amendment of the plaint. Therefore there was no opportunity to the plaintiff to issue the notice U/s 53 (B) of the Act. The defendant no. 11 is a proforma defendant and has participated in the proceedings by filing the WS and cross examining the witnesses. Therefore plaintiff is covered by the Judgment relied upon by him and the issue is decided in favour of the plaintiff.
9. Issue No. 3 : The plaintiff has prayed that the Will dated 16.06.1981 which is relied upon by defendant no. 2 to 4 be declared bad in law. He has also prayed for partition of the property and injunction against the defendant no. 2 to 4 with the relief that the conveyance deed dated 19.04.2002 be declared Null and Void. To succeed in the suit the plaintiff has to succeed in getting the relief of declaration in respect of the Will. Under Article 58 of the Limitation Act 1963 the period of limitation for the relief of declaration is three years and the limitation starts when the right to sue first accrues. Under Article 56 of the Act, the limitation to declare the forgery of an instrument issued or registered is three years and the limitation begins when the issue or registration becomes known to the plaintiff. In the present case, forgery is not alleged and therefore the limitation for the relief of declaration in respect Suit No.111/09 Page 7 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-8-of the Will has to be counted with reference to Article 58.
10. Under Article 110 of the Limitation Act 1963, the limitation for claiming share by a person excluded from a joint family property to enforce a right of share therein is twelve years and the limitation starts from the date when the exclusion becomes known to the plaintiff.
11. For the relief of injunction, the limitation is provided Under Article 113 which is three years from the date when the right to sue accrues.
12. To decide the present issue, it is material to find whether the plaintiff had the knowledge of the Will in question. If yes, it will have to be ascertained as to when he got the knowledge of the Will. The case of the plaintiff is that there were various meetings between the parties to partition the property equally amongst the legal heirs. As the defendant no. 2, 3 and 4 were not willing to partition the property, notice dated 15.12.2003 was issued but the defendant no. 2, 3 and 4 did not came forwarded for the partition. It is also stated in the plaint that a meeting took place between the plaintiff and the defendant no. 1 to 4 on 24.01.2004 but the defendants failed to partition the property.
13. In paragraph 2 of the preliminary objections in the WS of defendant no.
2 to 4, it is stated that immediately after the death of Smt. Kailaswati Sobti the plaintiff was told about the execution and registration of the Will. In paragraph 7 of the preliminary objections, it is stated that the plaintiff was aware of the Will since the year 1987. The property was mutated in favour of defendant no.2, 3 and 4 in the year 1992 and the plaintiff has raised the dispute after passing of many years. In paragraph 7 of the WS to the original plaint it was stated by the defendants no. 2, 3 Suit No.111/09 Page 8 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-9-and 4 that the whole family including the plaintiff was aware of the Will executed by Smt Kailashwati Sobti. The defendant no. 2, 3 and 4 have not denied the notice dated 15.12.2003 which is Ex.PW1/2 and they have also admitted that they had not replied to the legal notice. It is stated by them that the legal notice was of no consequence and therefore no reply was sent. The defendant no. 1 and 5 to 10 have also not denied the notice and they have not said anything in this regard except that the plaintiff is not entitled to the partition in view of the Will. Regarding the meeting on 24.01.2004 it is stated in the WS by the defendant no. 1 and 5 to 10 that it is denied for want of knowledge. The defendant no. 2, 3 and 4 have specifically stated in the WS that there was no meeting on 24.01.2004.
14. Ld counsel for the plaintiff has submitted that the defendants have not disclosed any date on which the Will was disclosed to the plaintiff after the death of Smt Kailashwati Sobti. In the WS of defendant no. 2, 3 and 4, it is also not stated that which of the defendants disclosed the Will to the plaintiff. The defendants have examined only the defendant no. 2 as DW-1. No other defendant has appeared in the witness box to support the averment made in the WS. The notice Ex.PW1/2 is admitted. The defendants did not reply. If there was a Will and the plaintiff had been told about the same, the defendants should have sent reply and adverse presumption is to be drawn against them U/s 114 of the Indian Evidence Act for not sending the reply.
15. Ld counsel for defendant no. 2, 3 and 4 has submitted that the plaintiff can not be believed. The plaintiff has stated in the plaint that on Suit No.111/09 Page 9 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-10-24.01.2004 he had a meeting with the defendant no. 1 to 4 regarding partition. In his cross examination dated 26.04.2005 he has stated "last meeting took place on 24.01.2004. The meeting of 24.01.2004 was attended by defendant no. 2 to 4. Defendant no. 2 to 4 had threatened me to sell the property". In his cross examination dated 01.08.2005 he stated that "after notice dated 15.12.2003 was sent to the defendant, no meeting took place with them". In his affidavit towards examination in chief DW-1 has stated that the plaintiff was aware of the existence of the Will. DDA mutated the property in favour of defendant no. 2, 3 and 4 on 01.08.1991 (stated as 1992 in the WS) and conveyance deed was got executed on 19.04.2002. It is also stated that the whole family including the plaintiff had the knowledge of the Will and the plaintiff has filed the suit to extract me. In his cross examination DW-1 has stated that he disclosed the factum of the Will to the plaintiff before 13th day ceremony after the death of his mother and there is no suggestion to the contrary from the plaintiff.
16. The definition of the term 'proved' is provided u/s 3 of the Indian Evidence Act 1872. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that the prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The pleadings of the parties and the evidence which is relevant for decision of the present issue, has to be examined in light of the definition of the term 'proved' as reproduced above. Smt Kailashwati Sobti expired on 19.05.1987. If she had died intestate, all class I legal Suit No.111/09 Page 10 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-11-heirs immediately became entitled for share in the property. The plaintiff claims that there were number of meetings regarding the partition. According to the plaintiff he had a meeting with defendant no. 1 to 4 on this issue on 24.01.2004 however in his cross examination he stated that there was no meeting after sending the notice Ex.PW1/B dated 15.12.2003. More than 16 years had elapsed after the death of the mother of the plaintiff and it is not natural that he would have been content only with meetings on the issue and that he would not take any legal steps to get his share. 16 years is a long time. The property was in possession of defendant no. 2, 3 and 4. In the normal course the plaintiff would have discussed the issue with other defendants also but there is no such pleading or evidence. As already mentioned the meeting dated 24.01.2004 in which the defendant no. 1 was also allegedly present, is doubtful. The property was mutated in favour of defendant no. 2, 3 and 4 in the year 1991. After the death of Smt Kailashwati Sobti, the plaintiff could have inquired as to who was paying the house tax and whether the property had been mutated by MCD and DDA. For 16 years after the death of the original allottee, the matter of mutation would not have been left unattended. The plaintiff has not stated whether he made any inquiry in this regard. Under the normal circumstances the plaintiff should have inquired about these facts. In his cross examination dated 26.04.2005 the plaintiff/PW-1 has stated that he used to ask for his share at every function. He has also stated that he used to ask for his share once or twice in a year. In paragraph 7 of his affidavit he has stated that defendant no. 2, 3 and 4 were not willing to partition the property and Suit No.111/09 Page 11 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-12-therefore he was constrained to issue the notice Ex.PW1/2. The plaintiff has not disclosed the date when his demand for partition was rejected. This date is material from the point of limitation. In paragraph 15 of the plaint, the plaintiff stated that the cause of action further arose on 24.01.2004 when the meeting was held between the plaintiff and the defendant no. 1 to 4 but the defendants refused to partition the property by metes and bounds. It has already been noted that in his cross examination he has stated that after 15.12.2003 no meeting took place. In the notice EX.PW1/2 also it is stated "that time and again you addressee no. 6 to 8 (defendant no. 2, 3 and 4 herein) have been making promises to partition the property but despite your promises to partition the property left behind by the deceased mother of my client are not paying any heed to the requests made by my client and other legal heirs in order to usurp the share of my client by refusing to giving effect the partition by metes and bounds and if the property can not be partitioned.........". According to these averments in the legal notice, the other legal heirs were also demanding share in the property but they have not stated so in their WS. The defendant no. 1 and 5 to 10 have supported the defendant no. 2, 3 and 4 and have specifically stated that in view of the Will only the defendant no. 2, 3 and 4 are entitled to the property. In the cross examination of DW-1 there is no specific suggestion that before the 13th day ceremony of the death of Smt Kailashwati Sobti, he did not disclose the factum of the Will to the plaintiff. It is not natural that the plaintiff would wait for 16 years to send the notice of partition when the other defendants were not Suit No.111/09 Page 12 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-13-supporting him. Adverse inference can be drawn against the defendant no. 2, 3 and 4 for not sending reply to Ex.PW1/2 but it is not necessary that adverse inference must be drawn. They had acted upon the Will right from the year 1991. They have stated that the notice was not replied as the plaintiff was aware of the Will. This explanation appears probable in the facts and circumstances of the present case and therefore adverse presumption is not to be drawn against the defendant no. 2, 3 and 4. DW-1 has not disclosed the specific date on which he told the plaintiff about the Will but he has given the approximate period. It is natural for the parties not to remember specific dates after a gap of long period if there is no dispute raised by the interested party within reasonable time. From the statement of DW-1 and the other facts and circumstances mentioned above it appears that the plaintiff had come to know about the Will on or before 01.06.1987. It also appears that to cover up the issue of limitation the suit was initially filed only for the relief of partition and injunction and later on the relief for declaration in respect of the Will was incorporated by amendment. It is therefore held that for the purpose of limitation, for the relief of declaration, partition and injunction the date from which the limitation is to be reckoned is 01.06.1987. The suit was filed on 30.01.2004 and therefore the suit is clearly barred by limitation. The plaintiff could not have proceeded with the suit without declaration of the Will as Null and Void. The period of limitation for declaration regarding the Will expired on 01.06.1990. The issue is accordingly decided in favour of the defendants and against the plaintiff.
Suit No.111/09 Page 13 of 21Satya Pal Sobti VS Achraj Nath & Ors.
-14-17. Issue No. 4: This issue is regarding maintainability of the suit. No law has been cited which makes the suit not maintainable. The issues of valuation, jurisdiction and limitation are separate. These issues by themselves do not make a suit not maintainable. This issue has also not been pressed by ld counsel for the defendants and the issue is accordingly in favour of the plaintiff. It is held that the suit is maintainable in the present form.
18. Issue No. 5 to 8: The main issue is the issue no. 5 which is regarding the validity of the Will dated 16.06.1981 Ex.DW2/1. The onus in respect of this issue was placed on both parties vide order dated 05.11.2011. The issue no. 5 was modified vide order dated 05.11.2011 and parties have not led further evidence after modification of the issue. Ld counsel for the plaintiff has assailed the Will and has submitted that there are suspicious circumstances which have not been explained by the propounder of the Will. The points of suspicion raised by ld counsel for the plaintiff are as here under:-
(a) The propounder of the Will took active part in preparation of the Will.
(b) It is not natural that a mother who has lost young son would execute a Will and get the same registered after about 16 days of the death of the son. It is customary that mourning continues for 40 days.
(c) None of the witnesses produced by the defence has stated that the Will which is in English was read and explained to the testator in vernacular. DW-3 Sh. D.C. Tuteja who allegedly drafted the Will has admitted in his cross examination that there is no certificate on the Will that it was read Suit No.111/09 Page 14 of 21 Satya Pal Sobti VS Achraj Nath & Ors.-15-
and explained to the testator in vernacular. The certificate on back side of the first page of the Will in form of a stamp by the registrar can not be treated as a certificate of reading over and explaining the contents to the testator in vernacular. It is also not explained as to who has written the date 16.06.1981 mark X-1 on the Will Ex.DW2/1 and who was written the name Kailashwati below the thumb impressions.
(d) Most of the legal heirs including the LRs of the deceased son were left out and there is no reason why the testator would do so.
(e) DW-1/Defendant no. 2 has admitted that Lt Smt Kailashwati Sobti was maintaining bank account under her signature and there is no reason why she would use thumb impression to execute the Will. The thumb impression on the Will are smudged and therefore the plaintiff could not have got the thumb impressions examined by an expert to check the genuineness.
(f) Smt Kailashwati Sobti was not keeping well and she was not in a sound state of mind at the time of alleged execution of the Will.
19. Ld counsel has cited number of authorities in support of his submissions and the copies have been filed with list. The authorities are on the point that taking of active part by the propounder of the Will is a suspicious circumstance. Other suspicious circumstances have also been cited in the Judgments. The ratio of the judgments is also that it is the duty of the propounder to remove the suspicion and to prove the Will as required U/ s 59 and 63 of the Indian Succession Act 1925 r/w section 68 of the Indian Evidence Act 1872. Since there is no dispute on the legal principles, the authorities relied upon by the ld counsel for the plaintiff as well as by ld counsel for the defendant are not being discussed Suit No.111/09 Page 15 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-16-individually. Whether any circumstance creates suspicion depends upon the facts of each individual case. Now I shall consider the submissions made by ld counsel for the plaintiff on the point of the Will with reference to the pleadings of the parties and the evidence on record.
20. The first objection is that Sh. K.K Sobti who is a beneficiary under the Will and also the propounder of the Will took active part in preparation of the Will. The Will is in favour of Defendant no. 2, 3 and 4. The other legal heirs i.e defendant no. 1 and 5 to 10 have not raised any suspicion on the Will. Rather they have supported the Will. The defendant no. 2 accompanied Late Smt Kailashwati Sobti for registration of the Will. He is not the sole beneficiary. DW-2 Sh S.K.Sharma is one of the attesting witnesses to the Will. He has stated that the advocate was engaged by Ms. Kailashwati Sobti. The plaintiff has himself stated in the plaint that Smt Kailashwati Sobti disposed of her property at Ganga Nagar and got the suit property on perpetual lease from DDA. He has not stated that Smt Kailashwati Sobti was not able to take her decisions independently in respect of transactions related to properties. Therefore the statement of DW-2 that Smt Kailashwati Sobti had engaged an advocate does not create suspicion only because of the fact that she was of old age and was not working. It is natural that Smt Kailashwati Sobti would have taken one of her sons for registration of the Will and he could be one of the beneficiaries. Even if defendant no. 2 remained present during the preparation of the Will, it would not automatically lead to an inference that he was exercising undue influence on the testator. Allegation of the plaintiff is that the testator was not in a sound state of mind. The Suit No.111/09 Page 16 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-17-presence of DW-2 can create suspicion only if it is found that the testator was actually not in a sound state of mind while preparation of the Will. The question whether the testator was in a sound state of mind will be discussed in the following paragraphs.
21. The plaintiff has not produced any evidence to show that for 40 days Late Smt Kailashwati Sobti would not have ventured out of the house after the death of her son Sh. Trilok Nath Sobti on 29.05.1981. The effect of death of an offspring will differ from person to person. Ld counsel for the defendants no. 2, 3 and 4 has submitted that not all persons will be effected equally and similarly on the death of an offspring. While some may slip into a state of deep sorrow, others may realize the truth of life and may proceed to perform their worldly duties. I agree with the submission made by ld counsel for the defendants. Sh. Trilok Nath Sobti was also brother of the plaintiff. His normal life was not disturbed by the death of his brother. In his cross examination dated 01.08.2005 he has stated that after the death of Sh Trilok Nath Sobti he came Delhi and stayed here for 7-8 days. He has further stated that he returned and again came to Delhi on the Teharvi. This shows that the plaintiff was also not in a state of complete mourning till the Teharvi or 40 days. Therefore the fact that the Will has been executed by Smt Kailashwati Sobti after about 19 days of the death of one of her sons does not create any suspicion by itself and it can not be said that due to the death she was in such a shock that she could not take conscious decisions.
22. DW-2 Sh. S.K.Sharma who is one of the attesting witnesses has stated Suit No.111/09 Page 17 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-18-in his cross examination that it is specifically mentioned in the Will that it was explained to the testator in the vernacular by the lawyer. DW-3 has stated in his cross examination that there is no certificate on the Will to this effect. Ld counsel for the defendant has submitted that the witness has also stated that normally the contents were explained by him to the testator. This witness was examined after about 26 years of the drafting of the Will and therefore it is natural for him not to remember all details. The certificate in this regard is present on the back side of page 1 of the Will. I agree with the submission made by ld counsel for the defendant. Smt Kailashwati Sobti was party to other documents also which were in English. For example- the perpetual lease Ex.DW1/2 is also in English. The mere fact that the Will has been prepared in English does not mean that it is not prepared according to the instruction of the testator. None of the Legal heirs except the plaintiff disputes the Will. The Will is registered and the Registrar has certified on the back side of page 1 of the Will that the testator appeared before him with Sh D. C. Tuteja and Sh H.V. Chauhan advocate and that she accepted the contents of the document after hearing the same. DW-1 has not been able to tell as to who had written the name of his mother on point C and B on the Will. His statement has been recorded after about 24 years of the execution of the Will and it is not un natural for him to forget such details. Therefore the issue raised by ld counsel for the plaintiff is not a suspicious circumstance.
23. The next issue is whether any suspicion is created as the Will favours only three legal heirs of Late Smt Kailashwati Sobti and the answer is Suit No.111/09 Page 18 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-19-negative. In Uma Devi Nambiar Vs. T.C. Sidhan (2004) 2 SCC 321 it has been held by the Hon'ble Supreme Court that 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.
24. The other objection is regarding use of thumb impression on the Will by the testator. Ld counsel for the plaintiff has submitted that DW-1 has admitted in his cross examination that the testator was maintaining a bank account under her signature. The perpetual lease deed was also executed in presence of DW-1/Defendant no. 2 and it appears that there was a well thought plan of the defendant no. 2, 3 and 4 that thumb impression should be used on the lease deed so that later on they can also do the same for preparation of the Will.
DW-1 has explained that Lt Smt Kailashwati Sobti used to take lot of time in signing. She has used her thumb impression on the lease deed. The submission made by ld counsel for the plaintiff regarding the plan of the defendants is beyond pleading. The plaintiff has assailed the Will only on the ground that his mother was not possessing sound mind at the time of execution of the Will. The thumb impressions were not disputed in the plaint. It is correct that the thumb impression at point A and D on the Will are smudged but thumb impression at point B is clear. The plaintiff could have got the thumb impression compared. The explanation given by DW-1/defendant no. 2 regarding use of thumb impression is plausible. DW-3 Sh Indraj Singh, LDC from the Office of Sub-Registrar-III has stated in his cross examination that as Suit No.111/09 Page 19 of 21 Satya Pal Sobti VS Achraj Nath & Ors.
-20-per procedure the signature of the witness is taken on the back of the document. Firstly his statement is regarding witnesses. Secondly the said rule has not been produced before the Court. Therefore this issue also does not raise suspicion.
25. The objection regarding the state of mind of Late Smt Kailashwati Sobti is the most important aspect to be examined regarding validity of the Will. The plaintiff has only made statements that since the time of death of his father and his brother, Smt Kailashwati Sobti was not keeping good health. He has also stated that on several occasions she was not able to recognize him. He has neither produced any documentary evidence in this regard nor he has examined any other witness to support this allegation. The plaintiff/PW-1 has admitted that his brother Sh. Yograj Sobti got married in the year 1982 and that the marriage was arranged and attended by his mother. PW-1 has also admitted that Lt Smt Kailashwati Sobti used to get the pension of his father and that she used to travel to Ganga Nagar to get the pension. The attesting witness DW-2 has also stated that Smt Kailashwati Sobti affixed her thumb impression on the Will in his presence at point A, B, C and D and that himself as well as the other attesting witness Mr D. K. Nayyar signed the Will. He has specifically stated that the Will was typed in presence of the testator and the contents were explained to her. He has also stated that the testator affixed her thumb impression on the Will after understanding the contents. In paragraph 1 of his affidavit it is stated that 2-3 days prior to 16.06.1981 when he visited the house of the testator, she took him aside and told him that she wanted to execute a Will and that she wanted him to come alone to the office of Sub-
Suit No.111/09 Page 20 of 21Satya Pal Sobti VS Achraj Nath & Ors.
-21-Registrar on 16.06.1981. The statement of DW-2 also shows that the Will was executed by Smt Kailashwati Sobti in a sound state of mind. It has been held in AIR (32) 1945 Privy council 174 that the testator being unwell not necessarily be that he had no testamentary capacity. In the present case the plaintiff has not been able to produce any evidence even regarding ill health of the testator.
26. The Will has been proved the defendant no. 2, 3 and 4 in accordance with section 59 and 63 of the Indian Succession Act 1925 r/w section 68 of the Indian Evidence Act 1872. The issue no. 5 is decided in favour of defendants and against the plaintiff. With this the other issues stand automatically decided against the plaintiff.
27. In view of the decision on issue no. 3 and 5 to 8 it is held that the plaintiff is not entitled to any relief in the present suit. The suit is dismissed with cost. Decree sheet be prepared and file be consigned to Record Room.
Pronounced in the open court on 23.03.2013.
(RAJESH KUMAR SINGH) Additional District Judge-05/Central Tis Hazari Courts, Delhi Suit No.111/09 Page 21 of 21 Satya Pal Sobti VS Achraj Nath & Ors.